Space Law Documents 2013 Volume2 - FINAL2

Space Law Documents 2013
volume 2: United States Documents
edited by
P.J. Blount
Follytronic Press
Thanks
Special thanks to Tanja Masson-Zwaan, Setsuko Aoki, and Olga Stelmakh for supplying
documents for this volume, as well as anyone else who sent me a pointer throughout the year.
About
P.J. Blount is an Adjunct Professor for the LL.M. in Air and Space Law at the University of
Mississippi School of Law. He edits the Res Communis Blog
(http://rescommunis.olemiss.edu/). Additionally, he serves on the editorial staff of the
Journal of Space Law, on the editorial board of the Journal of Astrosociology, and as the
Assistant Executive Secretary of the International Institute of Space Law. For more resources
go to http://space.blountsfolly.com/.
Introductory Notes
This compilation of space law and policy documents from 2013 is split into three
volumes. The first, State Documents, is comprised of documents produced by state
governments. The second volume, for ease of publication and due to the number of
documents, is dedicated solely to United States documents. The final volume, International
Law Documents, consists of documents produced in the international and global realm.
These unofficial copies are unaltered, and as a result some documents (particularly United
States Federal Register documents) contain extraneous information.
This years volume incorporates a document numbering numbering system that will
be used in future volumes to ease citations. The number is composed of three components:
the year, the volume number, and the document number. Additionally, to increase access,
this volume is being released under a Creative Commons Attribution + Non-Commercial
license.
Contents
Federal Legislative
2013.2.01
Government Accountability Office, Briefing Slides: Air Force

Launch Services New Entrant Certification Guide (Feb. 1, 2013)
2013.2.02
Government Accountability Office, Bid Protest Decision

B-408823: Blue Origin, LLC (Dec. 12, 2013)
33
2013.2.03
Pub. L. 112-239: National Defense Authorization Act of 2013,

excerpt secs. 152, 163, 911-917, 924, 1067, 1261-1267 (Jan. 2,
2013)
45
2013.2.04
Pub. L. 112-273: Space Exploration Sustainability Act (Jan. 14,

2013)
79
2013.2.05
S. Res. 24: Commemorating the 10-year anniversary of the loss

of the Space Shuttle Columbia (January 31, 2013)
81
2013.2.06
NASA, NASA Information Security Protection, 78 Fed. Reg. 5116

(Jan. 24, 2013)
85
2013.2.07
NOAA, Taking and Importing Marine Mammals; Taking Marine

Mammals Incidental to Space Vehicle and Test Flight Activities
From Vandenberg Air Force Base, CA, 78 Fed. Reg. 8111 (Feb. 5,
2013)
92
2013.2.08
FCC, Amendment of the Commissions Rules To Allocate

Spectrum and Adopt Service Rules and Procedures To Govern the
Use of Vehicle-Mounted Earth Stations in Certain Frequency
Bands Allocated to the Fixed-Satellite Service, 78 Fed. Reg. 9602
(Feb. 11, 2013)
95
2013.2.09
FCC, Operation of Wireless Communications Services in the 2.3

GHz Band; Establishment of Rules and Policies for the Digital
Audio Radio Satellite Service in the 23102360 MHz Frequency
Band, 78 Fed. Reg. 9605 (Feb. 11, 2013)
98
2013.2.10
Department of State, Additional Designation of A North Korean

Entity and Two North Korean Individuals Pursuant to Executive
117
Federal Executive
Order 13382, 78 Fed. Reg. 13139 (Feb. 26, 2013)

2013.2.11
FCC, Earth Stations Aboard Aircraft Communicating With

Fixed-Satellite Service Geostationary-Orbit Space Stations, 78
Fed. Reg. 14920 (Mar. 8, 2013)
119
2013.2.12
FCC, Guidance on Obtaining Experimental Authorizations for

Commercial Space Launch Activities, DA:13-446 (Mar. 15, 2013)
132
2013.2.13
NASA, Space Act Agreement between The National Aeronautics

and Space Administration and Bigelow Aerospace, LLC for
Beyond Low Earth Orbit Human Exploration and Development
(March 27, 2013)
135
2013.2.14
Department of Defense, Directive-Type Memorandum (DTM)

11-008, Use of Excess Ballistic Missiles for Space Launch (April
25, 2013)
146
2013.2.15
FAA, Office of Commercial Space Transportation; Notice of

Availability of a Record of Decision (ROD) To Issue a Reentry
License to Lockheed Martin Corporation for the Reentry of the
Orion Multi-Purpose Crew Vehicle (MPCV) From Earth Orbit to
a Location in the Pacific Ocean, 78 Fed. Reg. 29428 (May 20,
2013)
154
2013.2.16
FAA, Waiver of 14 CFR 437.29 and 437.55(a) for Scaled

Composites, LLC, 78 Fed. Reg. 42994 (July 18, 2013)
155
2013.2.17
FCC, Establishment of Rules and Policies for the Digital Audio

Radio Satellite Service in the 23102360 MHz Frequency Band,
78 Fed. Reg. 44029 (July 23, 2013)
159
2013.2.18
NASA, Semiannual Regulatory Agenda, 78 Fed. Reg. 44330 (July

23, 2013)
161
2013.2.19
FAA, Letter on Paragon World View Vehicle (Sept. 26, 2013)
163
2013.2.20
White House, National Space Transportation Policy (Nov. 21,

2013)
167
2013.2.21
FAA, Interpretation Concerning Involvement of NASA

Astronauts During a Licensed Launch or Reentry, 78 Fed. Reg.
72011-72013 (Dec. 2, 2013)
178
Federal Judicial
2013.2.22
United States v. Katzin, No. 12-2548 (3d Cir. Oct. 22, 2013)
182
HB 0603: An Act Providing that a Government Entity Must

Obtain a Search Warrant Prior to Obtaining Location
Information of an Electronic Device; and Providing Exceptions,
Definitions, and a Civil Penalty (May 6, 2013)
298
S.B. 240: Space Flight Informed Consent Act (Mar. 8, 2013)
302
H.B. No. 1791: An act relating to the facilitation and operation of

space flight activities in this state (June 14, 2013)
307
Montana
2013.2.23
New Mexico
2013.2.24
Texas
2013.2.25
United States Government Accountability Office

Washington, DC 20548
February 7, 2013
Congressional Committees
Subject: Launch Services New Entrant Certification Guide
This letter formally transmits the briefing slides we provided on February 1, 2013 in
response to a House report accompanying the National Defense Authorization Act for Fiscal
Year 2013 (Pub. L. No. 112-479 (2013)), which directed that we report to the congressional
defense committees by February 1, 2013 with a review and analysis of the implementation
of the Air Force Launch Services New Entrant Certification Guide (Guide). In 2011, the Air
Force, National Aeronautics and Space Administration (NASA), and National
Reconnaissance Office (NRO), implemented a coordinated strategy to certify new entrants
to provide launch capability on Evolved Expendable Launch Vehicle (EELV)-class launch
vehicles. New entrants are launch companies that are working toward certifying their launch
vehicle capabilities so that they may be allowed to compete with the current sole-source
contractor for government launches. Launch vehicle certification is necessary to ensure that
only proven, reliable launch vehicles will be used to launch government satellites. Currently
only one provider is certified to provide EELV-class launch capability for government
launches. To execute this strategy for national security space launches, the Air Force
developed the Guide, which serves as a risk-based approach that the Air Forces Space and
Missile Systems Center is using to certify the launch vehicle capabilities of potential new
entrant launch providers. In response to the mandate, we addressed: (1) How the Air Force
plans to implement its New Entrant Certification Guide, and (2) New entrant perspectives on
becoming certified under the New Entrant Certification Guide.
To conduct this work, we reviewed the Guide and other requirements documents,
interviewed Air Force officials responsible for implementing the Guide, and spoke with all
four potential new entrants identified by the Air Force to discuss their perspectives on
becoming certified under the Guide. We conducted this performance audit from October
2012 to February 2013 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit to obtain sufficient,
appropriate evidence to provide a reasonable basis for our findings and conclusions based
on our audit objectives. We believe that the evidence obtained provides a reasonable basis
for our findings and conclusions based on our audit objectives.
In summary, the Air Force based its Guide on existing NASA policy and procedures with
respect to payload risk classification and launch vehicle certification. Payloads are classified
based in part on factors such as national significance, payload complexity and cost, and are
GAO-13-317R Launch Services New Entrant Certification Guide
Space Law Documents 2013, v. 2 - 1
assigned a risk tolerance level accordingly. The Air Force, NASA, and NRO are working to
coordinate and share information to facilitate launch vehicle certification efforts; however,
each agency will determine for itself when certification has been achieved. As a result, some
duplication and overlap of efforts could occur. The Air Force has also added other
prerequisites to certification for new entrants that are not captured within the Guide, such as
an approved implementation plan and a cooperative research and development agreement.
According to the Air Force, these agreements are legal mechanisms intended to enable data
sharing between the Air Force and new entrants, while protecting the interests of both.
While potential new entrants stated that they are generally satisfied with the Air Forces
efforts to implement the Guide, they identified several challenges to certification, as well as
perceived advantages afforded to the incumbent launch provider. For example, new
entrants stated that they face difficulty in securing enough launch opportunities to become
certified. The Under Secretary of Defense for Acquisition, Technology, and Logistics
recently directed the Air Force to make available up to 14 launches for competition to new
entrants, provided they demonstrate the required number of successful launches and
provide the associated data in time to compete. If new entrants have not completed their
final certification launch in time to compete, the newly-available launches will likely be
awarded to the incumbent provider. New entrants stated they must also respond to changes
in Air Force requirements that could impact their launch vehicle design and certification
schedules. Air Force officials noted their intent to work with new entrants that may be
affected by recent changes. Additionally, new entrants consider some Air Force
requirements to be overly restrictive; for example, new entrants must be able to launch a
minimum of 20,000 pounds to low earth orbit from specific Air Force launch facilities (versus
facilities the new entrants currently use.) The Air Force stated that 20,000 pounds
represents the low end of current EELV lift requirements, and that alternate launch sites are
not equipped for the Air Forces national security launches. Further, new entrants noted that
the incumbent provider receives ongoing infrastructure and development funding from the
government, an advantage not afforded to the new entrants, and that historical criteria for
competition in the EELV program were more lenient. The Air Force acknowledged that
criteria for competition are different, reflective of differences in the acquisition environment.
For additional information on the results of our work, see enclosure I: Briefing on the Air
Forces Launch Services New Entrant Certification Guide.
In commenting on a draft of this report, the Department of Defense (DOD) raised a concern
that we erroneously stated that DOD used a different certification standard for the incumbent
provider than will be applied to new entrants. However, the slide in question (page 22 of this
report) was correct as it reflects the new entrant perception that the criteria for competition,
not certification, were more lenient for the incumbent provider. As a result, no change was
made in response to this comment. DOD also provided other technical comments which
were incorporated as appropriate. DODs comments are reproduced in enclosure II:
Comments from the Department of Defense.
We are sending copies of this report to the appropriate congressional committees. We are
also sending copies to the Secretary of Defense, the Secretary of the Air Force, the NASA
Administrator, and the Director of the NRO. This report will also be available at no charge on
our website at http://www.gao.gov. Should you or your staff have questions concerning this
report, please contact me at (202) 512-4841or on chaplainc@gao.gov.
Page 2
Contact points for our Offices of Congressional Relations and Public Affairs may be found
on the last page of this report. Key contributors to this report were Art Gallegos, Assistant
Director; Pete Anderson, Nabajyoti Barkakati, Claire Buck, Desiree Cunningham, John
Krump, Brian Lepore, Carrie Rogers, Mike Shanahan, and Hai Tran.
Cristina Chaplain
Director
Acquisition and Sourcing Management
Enclosures - 2
Page 3
List of Committees
The Honorable Carl Levin
Chairman
The Honorable James Inhofe
Ranking Member
Committee on Armed Services
United States Senate
The Honorable Chairman
The Honorable Ranking Member
Subcommittee on Defense
Committee on Appropriations
United States Senate
The Honorable Buck McKeon
Chairman
The Honorable Adam Smith
Ranking Member
Committee on Armed Services
House of Representatives
The Honorable C.W. Bill Young
Chairman
The Honorable Pete Visclosky
Ranking Member
Subcommittee on Defense
Committee on Appropriations
House of Representatives
Page 4
Enclosure I: Briefing on the Air Forces Launch Services New Entrant Certification Guide
Air Force Launch Services

New Entrant Certification Guide
Briefing to the Defense Committees in response to
House Report accompanying National Defense
Authorization Act for Fiscal Year 2013 (Pub. L. No.
112-479 (2013))
February 1, 2013
THIS PRELIMINARY WORK OF GAO IS SUBJECT TO REVISION AND SHOULD NOT BE
REPRODUCED OR DISTRIBUTED. SOME GRAPHICS MAY BE ENTITLED TO COPYRIGHT.
Page 1
Page 5
Contents
Introduction
Objectives
Background
Objective 1: Air Force Implementation of the Guide
Objective 2: New Entrant Perspectives
Continuing Issues
Agency Comments and Our Evaluation
Scope and Methodology
Comments from the Department of Defense

Page 2
Page 6
Introduction
The Air Force is working to reintroduce competition into its Evolved
Expendable Launch Vehicle (EELV) program for the first time in
almost 15 years. Reasons include:
Significant price increases for launch services
Emergence of additional potential viable launch providers
Desire to bolster the U.S. launch industrial base and introduce
competition
In coordination with the National Aeronautics and Space Administration
(NASA), and the National Reconnaissance Office (NRO), the Air
Force has developed a Launch Services New Entrant Certification
Guide to inform how the Air Force will certify the capability of
potential new entrant launch companies to provide launch services
and potentially compete for national security space (NSS) missions
Page 3
Page 7
Objectives
As agreed with your offices, this briefing satisfies the mandate
language provided to GAO in the House Report and
addresses the following questions:
(1) How does the Air Force plan to implement its New Entrant
Certification Guide?
(2) What are new entrant perspectives on becoming certified
under the New Entrant Certification Guide?
Page 4
Page 8
Background
The EELV program is the primary provider of launch vehicles and capability for
U.S. military and intelligence satellites. The launch vehicles used by the EELV
program are also used to launch civilian and commercial satellites.
The most recent independent cost estimate projects the program will cost close to
$70 billion through 2030.
The EELV program started in 1995 when the Air Force awarded contracts to four
companies for preliminary launch vehicle system designs; at that time, the Air
Forces acquisition strategy was to select the one company with the most costeffective design.
Given commercial forecasts that predicted sufficient demand to support two
launch vehicle providers, in 1997 the Secretary of Defense approved maintaining
competition between the two top companies: Lockheed Martin, and what would
become Boeing.
Among other things, the new strategy was designed to
Promote competition, resulting in lower launch prices
Encourage contractor investment in innovative technologies
Page 5
Page 9
Background, cont.
By the late 1990s, it was clear that the commercial market would not
materialize, and in 2003 DODs cost estimate for the EELV program
increased by 77 percent over the previous year
The Air Force again revised its acquisition strategy for the program, this
time to add program office oversight, focus on assured access to space,
and reflect the lack of commercial demand and the governments role as
primary EELV customer
DOD, NASA, and the NRO comprise the majority of EELV business
In 2006, the two EELV contractors formed a single company under a joint
venture, called the United Launch Alliance (ULA); consolidation of their
launch businesses was expected to yield between $100 million and $150
million in savings per year
ULA has been successful in consolidating its operations and realizing
significant savings, according to the Defense Contract Management
Agency, but for various reasons, EELV program costs have continued to
rise
Page 6
Page 10
Background, cont.
In late 2011, the Air Force revised its acquisition strategy for the EELV program; this
strategy was designed to maintain mission success, stabilize the U.S. launch industrial
base, reduce launch costs, and allow competition, among other things
For the first time since the program began, new launch providers are emerging that
could eventually meet EELV requirements and compete with the heretofore solesource EELV contractor, ULA; we reported in 2011 that such competition could
potentially yield cost savings to the government
To that end, the Air Force, NASA, and the NRO embarked on a coordinated approach
to encourage new entrants to compete for EELV-class missions
In March 2011, the agencies signed a memorandum of understanding recognizing

the need for additional launch vehicle providers
In early October 2011, they developed a strategy to provide a consistent path for
new entrants to compete for [U.S. government] missions, and agreed to adopt a
framework consistent with NASAs long-standing certification criteria, contained in
NASA Policy Directive 8610.7D
In late October 2011, the Air Force issued its Launch Services New Entrant
Certification Guide (NECG), informed largely by NASAs criteria, which outlines the
risk-based approach the Air Force will use to certify the capabilities of new launch
companies to compete for EELV-class missions
Page 7
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Objective 1
Air Force Implementation of the NECG
The Commander of the Air Forces Space and Missile Systems Center is
responsible for granting launch vehicle certification
New entrants begin the process by issuing a Statement of Intent to certify
a vehicle, which contains that vehicles planned capabilities
Certification can occur following approval of milestones and completion of
activities outlined in the NECG; new entrants submit a formal certification
plan, which outlines the tailored certification approach through which a
new entrant intends to achieve certification
A separate certification plan and process is required for each launch
vehicle configuration; additionally, if a certified launch vehicle undergoes
changes that substantially affect certain factors outlined in the NECG,
such as operating time or engine thrust profile, that vehicle must re-enter
the certification process from the beginning
Certification does not guarantee contract award
Page 8
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Objective 1
Air Force Implementation of the NECG:
Interagency Coordination
The coordinated certification strategy between the Air Force, NASA, and
NRO provided that the agencies would use a common framework for
launch vehicle certification, based on existing NASA policies; however, the
strategy allows agency interpretation and certification requirements to
differ. For example, each agency may determine for itself
The number of launches a new entrant must complete prior to
competing for contract award
How terms such as common vehicle configuration are interpreted
Which changes to a launch vehicle will substantially affect the
configuration
The sufficiency of data provided by the new entrant, and the format in
which it will be accepted
The order in which certification steps will take place
Air Force officials acknowledged significant overlap in the certification
process employed by each agency, and indicated they are working with
NASA and the NRO to share data and avoid unnecessary duplication of
efforts for new entrants
Page 9
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Objective 1
Launch Vehicle Risk Classification
The NECG is closely based on NASAs Policy Directive (NPD) 8610.7,

which according to NASA officials was originally released in 1999, and
provides a methodology for certifying launch vehicles based on payload
risk classifications.
There are three risk categories of launch vehicles: Categories 1, 2, and 3.
Each category is based on the risk associated with that vehicle; Category
1 launch vehicles are considered the highest-risk vehicles, and do not
require any previous flights before launching a government payload.
In addition to the three vehicle risk categories, there are alternatives
within the categories that require varying numbers of successful
consecutive launches and levels of government technical evaluation,
depending on the risk tolerance of the payload class a vehicle is
intended to carry.
The NECG requires all new entrants to develop a certification plan that will
eventually bring their vehicle to a Category 3 certification, meaning it can
launch the most-critical, least-risk tolerant payloads.
Page 10
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Objective 1
Payload Risk Classification
The Air Force plans to use NASAs payload risk evaluation approach, as outlined in NASAs Procedural
Requirements 8705.4, which among other things, provides a framework for assigning risk tolerance to
payloads based on numerous factors, such as national significance, payload complexity, and cost.
Under this framework, payloads can be assigned Class A-D; a payloads class determines the risk
category of the vehicle on which it will launch.
Payload Class
Launch Vehicle Assignment
Class A
This class represents the most critical payloads, thus Class A payloads must be
launched on the most proven, least risky launch vehicles. Vehicles that launch
Class A payloads are the most mature, demonstrated successful launch
vehicles
Class B, C, D
Payloads outside Class A are considered more tolerant to risk, and can be flown
on launch vehicles with a progressively higher risk rating
Payloads classified as more tolerant to risksuch as Classes B, C, or Dcould provide an opportunity

for new entrants to gain experience launching government payloads. However, at this time, according to
Air Force officials:
Most NSS payloads are considered Class A, and therefore require the most proven launch
vehicles, such as those in launch vehicle risk Category 3
No Air Force process exists to reassess payload risk classification, potentially limiting opportunities
for new entrants to prove their launch vehicle, and subsequently compete for launches. Air Force
officials state that work is ongoing to develop a process by which to reassess NSS payload risk
classification.
Page 11
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Objective 1
Prerequisites for Certification Outside the NECG
Some new entrant prerequisites have been added that are outside the NECG, and are likely to
add time and potentially cost to the new entrant certification process. For example,
Prior to approval of a certification plan, new entrants must
Develop an implementation plan with the Air Force that describes in greater detail
the new entrants timeframes, to be approved by the Air Force.
Sign an approved cooperative research and development agreement (CRADA)
with the Air Force; Air Force officials said this was a legal mechanism that protects
the Air Force and the companys interests, but there are concerns the process
could add time to their certification timeline.
New entrants will be required to integrate payloads with the launch vehicle upright, or
vertical, and the payload attached to the vehicle from above, as NSS payloads are
currently designed to be vertically integrated.
Though not mentioned in the NECG, Air Force officials confirmed that new
entrants will be required to vertically integrate payloads, even if the new entrants
launch vehicle was designed to horizontally integrate payloads.
Senior Air Force officials indicated that even if a payload could be retrofitted to be
horizontally mated to the launch vehicle and significant cost savings could be
realized by allowing horizontal integration, the requirement for vertical payload
integration would stand, as NSS payloads are designed to be vertically mated to
the launch vehicle.
Page 12
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Objective 1
New Entrants In the Certification Process
Company
Launch vehicle
to be certified
Statement of
Intent to certify
submitted
Certification
plan
Planned
certification date
Alliant Techsystems,
Incorporated (ATK)
Liberty II
Expected March
2013
TBD
Late 2016
Lockheed Martin
Athena III
May 2012
Under
development
Under
development
Orbital Sciences
Corporation (Orbital)
Antares
June 2012
In negotiation
2017-2018
Space Exploration
Technologies
(SpaceX)
Falcon 9
February 2012
In negotiation
Late 2013
SpaceX
Falcon Heavy
June 2012
In negotiation
Late 2015
Source: Company data
Page 13
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Objective 2
New Entrant Perspectives on Certification
We spoke with the four potential new entrants pursuing launch vehicle
certification under the NECG. All four companies said they were satisfied with
the NECG and the Air Forces efforts to facilitate launch vehicle certification.
Each noted potential challenges, however, in becoming certified under the NECG
to compete for NSS missions. They also perceived advantages afforded to the
current sole-source EELV provider. Below are the challenges identified by one
or more new entrant, each of which is explained in greater detail on the
following slides.
New entrant-identified challenges to certification
1
Lack of launch opportunities to foster certification
Unanticipated requirements changes
Minimum 20,000 lb lift requirement to low earth orbit (LEO)
Inflexibility of launch and range site options

Page 14
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Objective 2
New Entrant Perspectives on Certification:
Identified Challenges
Identified challenge #1: Lack of new entrant launch opportunities on the path to certification poses risk to
launch vehicle certification schedule
Issues to
overcome
Because nearly all NSS missions are Class A, they may not provide an opportunity for new entrants
to gain experience on the path to certification; new entrants must meet the most stringent
requirements prior to competing for Class A missions.
The Air Force made two research missions available to help enable new entrant certification, but the
alternatives for a Category 3 launch vehicle require between 2 and 14 successful consecutive flights.
The wide range is due to the variable technical oversight required for each alternative; an alternative
requiring fewer consecutive flights typically necessitates greater government oversight and technical
reviews.
Additionally, the Air Force recently made 14 launches available for competition beginning in 2015,
but to be eligible to compete for these launches, new entrants must successfully execute the
requisite number of non-NSS launches and submit data from their final certification launch.
Air Force
action
Air Force officials told GAO that they are currently developing a process to reassess payload risk
classifications for NSS payloads, but state that reclassification of NSS missions to reflect increased
payload risk tolerance is unlikely for several reasons, including the inherent national significance of
NSS missions, and the unintended stigma attached to rendering one mission less critical than
another.
Air Force officials indicate commercial launches will count toward certification, provided the launch
vehicle configuration used is identical to the vehicle for which the new entrant is pursuing
certification.
Page 15
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Objective 2
Identified challenge #2: Unanticipated requirements changes could impact new entrant vehicle design and
certification schedule
Issues to
overcome
In July 2012, the Air Force revised the Standard Interface Specification document (SIS). The SIS provides
technical requirements for integration between the payload and the launch vehicle. New entrants were not
invited to comment on draft revisions, or the impact those revisions might have on their launch vehicle
designs. New entrants are now determining the significance of the SIS revisions to their vehicle design,
and the likely effect on their certification schedule. Further, new entrants told us ULA, the current EELV
contractor, was involved in developing the SIS revisions, which in some cases reflect current ULA
capabilities.
New entrants expressed concern that other requirements documents could change without notice, and
additional requirements could be added to the certification process, increasing the schedule and
potentially adding to the cost of launch vehicle certification.
Air Force
action
Air Force officials told us the SIS revisions would not have a significant impact on new entrants, although
they acknowledged that they did not ask or assess what the impact on new entrants would be. Air Force
and ULA officials confirmed their joint development of SIS revisions, which in some cases reflect current
ULA capabilities.
Air Force officials said the System Performance Requirements Document, which governs minimum
launch system performance requirements, is currently undergoing revision. They indicated revisions will be
made available to new entrants prior to finalization, and that the new entrants will be invited to comment
on the changes.
Air Force officials acknowledge that certification criteria could change while a new entrant is undertaking
certification. For example, the implementation plan and CRADA requirements were recently added, but
officials say they will work with new entrants for whom requirements changes may have an impact.
Page 16
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Objective 2
Identified challenge #3: Minimum 20,000 lb lift requirement to low earth orbit is overly restrictive
Issues to
overcome
New entrants indicate that this requirement is overly restrictive to their business plans, noting that
commercial customers typically do not require this much lift capability; new entrants with no
commercial demand for larger launch vehicles would prefer to compete for small and medium NSS
payloads, leaving larger NSS payloads to other providers.
Air Force
action
No action expected; Air Force officials indicated that 20,000 lbs is the low end of current EELV lift
capability, and that most NSS payloads for the foreseeable future require this level of lift. Air Force
officials acknowledged, however, the possibility that future missions could tend toward smaller
satellites that could require less lift capability to launch.
Identified challenge #4: Inflexibility of launch and range site options could add cost to new entrant
baselines
The NECG requires new entrants to be able to launch from both the Cape Canaveral Air Force
Issues to
overcome Station in Florida (Cape), and Vandenberg Air Force Base in California (Vandenberg), even if a new
entrant has existing alternate East- and West-Coast launch sites. New entrants indicated that building
or refurbishing additional launch facilities at the required sites could be costly. It is unclear whether
new entrants can wait to invest in new launch sites until they establish a business case for the site.
Air Force
action
No action expected; Air Force officials indicated that existing sites at locations other than the Cape
and Vandenberg were not comparably equipped for NSS launches; for example, they lack the
necessary payload integration facilities.
Page 17
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Objective 2
Advantages to ULA
In addition to the challenges noted, new entrants identified perceived
advantages given to ULA through the EELV program. For example,
DOD provides about $1 billion a year to ULA to support its national
launch infrastructure, and provides funding to ULA for ongoing
engine and other technology development.
The recent SIS revisions were developed with ULA, and in some
cases are tailored to current ULA launch vehicle capabilities. These
revisions resulted in minimal impact on ULA vehicle design, but the
impact on new entrant vehicles is still unknown. Air Force officials
indicate that the SIS revisions were developed over several years,
and reflect current NSS mission needs.
New entrants note that historical criteria for competition in the
EELV program were more lenient than those applied to new
entrants under the NECG. For example, Boeing and Lockheed
Martin were allowed to compete for launch contracts prior to
completion of final vehicle designs. Air Force officials acknowledge
that criteria to compete for launches were different in the 1990s,
noting that the acquisition environment was also different.
Page 18
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Continuing Issues
In late 2012, the Undersecretary of Defense for Acquisition, Technology, and

Logistics signed an Acquisition Decision Memorandum outlining the parameters of
an upcoming block buy of launch vehicles from ULA and setting forth
opportunities for new entrants to compete for upcoming missions. The Air Force
continues to work toward implementing the decisions.
The Air Force is currently negotiating a contract with ULA that is expected to
cover 5 years of launch services and procure up to 36 launch vehicles.
The Air Force has made up to 14 EELV missions available for competition,
which represent nearly all NSS launches that could potentially be performed
by new entrants, based on capability and readiness assessments. However, if
new entrants have not completed all certification launches in time to compete,
those launches would also likely be awarded to ULA.
Some certification decisions that could affect new entrant competition have yet to
be finalized. For example, the Air Force is planning to
Develop a payload risk classification process over the next year. Though Air
Force officials stated that NSS payloads will most likely remain in Class A,
there may be science and technology missions that could be classified as
more tolerant to risk, thereby providing opportunities for new entrants to gain
launch experience and build toward vehicle certification.
Page 19
Page 23
Agency Comments and Our Evaluation

We provided a draft copy of this briefing to the Secretary of
Defense for comment in December 2012. In written comments
on the draft briefing, DOD raised a concern that we
erroneously stated that DOD used a different certification
standard for the incumbent provider than will be applied to
new entrants. However, the slide in question (slide 18) was
correct as it reflects the new entrant perception that the
criteria for competition, not certification, were more lenient for
the incumbent provider. As a result, no change was made in
response to this comment. DOD also provided other technical
comments, which were incorporated, as appropriate.
DOD comments are reprinted following the Scope and
Methodology section.
Page 20
Page 24
Scope and Methodology

Site visits, interviews, and information obtained from:
Air Force Space Command headquarters, Peterson Air Force Base, Colorado Springs, Colorado
Air Force Space and Missile Systems Center, Launch and Range Directorate, Los Angeles Air Force Base, El
Segundo, California
Defense Contract Management Agency, various locations

Department of Defense, Under Secretary for Acquisition, Technology and Logistics, Space and Intelligence
Office, Arlington, Virginia
Department of Defense, Office of Inspector General, Alexandria, Virginia
National Aeronautics and Space Administration headquarters, Washington, District of Columbia
National Reconnaissance Office, Chantilly, Virginia
Office of the Secretary of Defense, Cost Assessment and Program Evaluation, Washington, District of Columbia
Program Executive Officer for Space Launch, Washington, District of Columbia
Secretary of the Air Force, Acquisition Directorate of Space Programs, Arlington, Virginia
The Aerospace Corporation, El Segundo, California
United Launch Alliance, Centennial, Colorado

Site visits and interviews with potential new entrants:
Alliant Techsystems, Incorporated, Aerospace Systems Division, Magna, Utah
Lockheed Martin Commercial Launch Services, Denver, Colorado
Orbital Sciences Corporation, Huntington Beach, California
Space Exploration Technologies Corporation, Hawthorne, California
Page 21
Page 25
Scope and methodology, cont.

To determine how the Air Force plans to implement its New Entrant Certification Guide (NECG):
We reviewed relevant documents, including the NECG; EELV Acquisition Strategy;
Coordinated Strategy Among the Air Force, NASA, and the NRO; NASA policy documents
referenced in the NECG; and Air Force documentation germane to implementation plans.
We identified and reviewed current EELV requirements, including the Standard Interface
Specification and Operational Requirements Document, to identify additional launch vehicle
requirements with which new entrants must comply in order to achieve certification.
We interviewed top Air Force and industry officials to discuss implementation plans and
preliminary observations.
We interviewed NASA officials on their launch vehicle certification and payload classification
policies to determine key differences between Air Force and NASA processes.
We assessed the extent to which coordination is occurring among the Air Force, NASA, and
NRO, through interviews with officials at the three agencies.
We compared current and historical requirements to determine the extent to which current
requirements are more stringent or flexible.
We reviewed future launch manifests to determine if the requirements contained within the
Guide are reasonable given the expected needs of future NSS payloads.
Page 22
Page 26

To determine new entrant perspectives in becoming certified under the
NECG:
We interviewed all four companies identified by the Air Force as
potential new entrants to obtain perspectives on certification
challenges and discuss questions they had on the NECG and the
launch vehicle certification process. In order to properly safeguard
proprietary data, we summarized their responses and reflected an
aggregate response in our briefing.
We also analyzed current EELV requirements documents to identify
potential issues for the new entrants, and discussed these
observations with representatives from each company and relevant Air
Force officials.
We provided a draft copy of this briefing to each new entrant. They
submitted technical comments, which were incorporated as
appropriate.
Page 23
Page 27

We conducted this performance audit from October 2012 to
February 2013 in accordance with generally accepted
government auditing standards. Those standards require that
we plan and perform the audit to obtain sufficient, appropriate
evidence to provide a reasonable basis for our findings and
conclusions based on our audit objectives. We believe that the
evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives.
Page 24
Page 28
Enclosure II: Comments from the Department of Defense
Page 29
(121094)
Page 30
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United States Government Accountability Office

Comptroller General
of the United States
Decision
Matter of:
Blue Origin, LLC
File:
B-408823
Date:
December 12, 2013
Kevin C. Dwyer, Esq., Kevin P. Mullen, Esq., and Ethan E. Marsh, Esq., Jenner &
Block LLP, for the protester.
Richard J. Vacura, Esq., and Pablo A. Nichols, Esq., Morrison & Foerster LLP, for
Space Exploration Technologies Corporation, an intervenor.
Richard J. McCarthy, Esq., Bradley W. Smith, Esq., and Geoffrey Swanson, Esq.,
National Aeronautics and Space Administration, for the agency.
Scott H. Riback, Esq., and Tania Calhoun, Esq., Office of the General Counsel,
GAO, participated in the preparation of the decision.
DIGEST
1. Government Accountability Office has jurisdiction to consider protest challenging
terms of solicitation for the award of a lease of federal property where the record
shows that the agency will receive benefits--both tangible and intangible--in
connection with the award of the lease, such that the agency is, in effect,
conducting a procurement for goods and services.
2. Protest that solicitation for the lease of a launch pad at Kennedy Space Center
favors a multi-user approach over an exclusive user approach is denied where
record shows that solicitation contemplates two possible approaches, but includes
no preference for one approach versus another, and merely requires different
information depending upon which approach is being offered.
DECISION
Blue Origin, LLC, of Kent, Washington, protests the actions of the National
Aeronautics and Space Administration (NASA) in connection with its issuance of
announcement for proposals (AFP) No. AFP-KSC-LC39A, for the lease of Launch
Complex 39A (LC 39A) at the Kennedy Space Center (KSC). Blue Origin maintains
that the agency intends to misapply the terms of the AFP in evaluating proposals
and selecting a prospective lessee for the facility.
We deny the protest.
BACKGROUND
LC 39A is an historic launch complex that NASA used throughout the Apollo and
Space Shuttle programs. With the conclusion of those programs, NASA determined
that presently it has no foreseeable use for LC 39A, and no budget to operate and
maintain the facility. The agency has determined that LC 39A potentially could be a
useful launch facility for commercial space launch companies that would assume
financial and technical responsibility for operation and maintenance of the facility.
Accordingly, NASA issued the subject AFP to solicit proposals to enter into an
agreement to use the facility for a minimum period of 5 years. AFP at BATES 6.
The AFP describes NASAs intended transaction as follows:
NASA intends to establish a Public-Private or Public-Public Venture
(PPV) to grant a partner(s) an interest in real property for a specified
term through an instrument(s) such as a lease, a use permit, or other
form of property out-grant term as authorized by the Commercial
Space Launch Act (CSLA) [51 U.S.C. chapter 509 (Supp. IV, 2010)] or
the Space Act [51 U.S.C. chapter 201 (Supp. IV, 2010)]. NASA KSC
intends to grant the industry partner(s) sufficient rights to occupy,
operate, modify and maintain the LC 39A as necessary to support the
partners proposed use.
NASA expects the potential partner(s) to be fully responsible for the
operations and maintenance of the facility, to include equipment, at
their own expense, for the term of any agreement(s). The
agreement(s) will fully define the roles and responsibilities of NASA
and the Partner(s).
AFP at BATES 6.
The AFP contemplates two potential arrangements for the use of the launch facility.
Under the terms of the AFP, firms are required to stipulate whether their proposed
use will be exclusive--that is, only the proposing firm would be able to use LC 39A
to launch its space vehicles--or whether they propose to make LC 39A available to
multiple users. AFP at BATES 8. The question of an exclusive versus multiple user
arrangement is at the heart of Blue Origins protest.
In response to the AFP, the agency received two timely proposals by the July 5,
2013, deadline for their submission, one from the protester and one from Space
Exploration Technologies Corporation (SpaceX). The agency currently is in the
process of evaluating those proposals, and has not yet announced any conclusions.
Page 2
B-408823
All parties acknowledge, and are aware of, the fact that Blue Origin has proposed a
multi-user approach, whereas, SpaceX has proposed an exclusive use approach.1
After the submission of proposals, Blue Origin filed an agency-level protest with
NASA in the wake of certain remarks made by NASAs Administrator. Specifically,
by letter dated August 8, Blue Origin protested that the Administrators remarks
demonstrated that NASA intended to evaluate proposals in a manner that was
inconsistent with what Blue Origin viewed as the requirements of the AFP. Agency
Report (AR) exh. 17, Blue Origin Agency-Level Protest. Blue Origin takes the
position (discussed in detail below) that the AFP includes a preference for using LC
39A as a multi-user launch facility. In support of its position, Blue Origin noted that
NASAs administrator had remarked publicly that NASA would prefer launch
complex 39B (LC 39B, which is adjacent to LC 39A, is essentially a companion
launch pad) to be the multi-user launch facility. According to the protester, this
demonstrated that the agency would not evaluate proposals in accordance with the
terms of the AFP for LC 39A.
By letter dated August 23, NASA denied Blue Origins protest. AR, exh. 18, NASA
Response to Blue Origin Agency-Level Protest.2 The agency expressed its view
that the AFP did not include a preference for a multi-user approach for LC 39A.
NASA further concluded that the comments of the NASA Administrator would have
no effect or influence on the selection process for the successful concern under the
AFP. Blue Origin filed this protest after its receipt of the agencys letter denying its
agency-level protest.
JURISDICTION
As a threshold matter, NASA maintains that our Office lacks jurisdiction to consider
Blue Origins protest. NASA argues that our jurisdiction is confined to protests
challenging the award or failure to award a contract for the procurement of goods or
services. According to the agency, it is not entering into a contract for the
These differing approaches have been discussed publicly in various news

sources. See e.g., http://www.parabolicarc.com/2013/07/20/nasa-weighscompeting-blue-origin-spacex-proposals-for-pad-39-a/.
2
The agency declined to characterize Blue Origins August 8 letter as a protest and
also declined to characterize its response to the August 8 letter as a response to
that protest because of what the agency described as a lack of jurisdictional
prerequisites. AR, exh. 18, at BATES 429, 431. We discuss the question of
jurisdiction in detail below.
Page 3
B-408823
procurement of goods or services, but, rather, it intends to execute a lease by a

private concern of federally-owned property.3
Blue Origin contends that, in fact, our Office does have jurisdiction to consider its
protest. According to Blue Origin, although the contract is for the lease of LC 39A, it
also includes elements of a procurement of goods or services. In this connection,
Blue Origin points out that the successful lessee will be required to bear the
expense of operating and maintaining LC 39A throughout the term of the lease.
Blue Origin argues that, during the lease term, various elements LC 39A will be
either maintained in a safe and operable condition or demolished.4 Blue Origin
maintains that, because NASA requires access to areas in and around LC 39A in
connection with the agencys operation of LC 39B,5 it will benefit from the lessees
maintenance or demolition of these elements of the launch pad because the areas
that NASA will need to access will be rendered safe.6 Blue Origin points out as well
that, at the conclusion of the lease, LC 39A will revert to NASA in at least a
maintained, and potentially an improved, condition. The protester argues that we
previously have taken jurisdiction in cases such as this where the contract
contemplates a mixed transaction, that is, one where there are elements of both a
sale or lease of government property, and also the procurement of goods and
services are involved.
Although the AFP anticipates various possible arrangements ( . . . a lease, a use

permit, or other form of property out-grant term . . . . AFP at BATES 6), the parties
generally have used the term lease to describe the possible transaction here. This
decision adopts the parties terminology.
4
LC 39A includes two large steel structures known as the fixed service structure
(FSS) and the rotating service structure (RSS). See AR, exh. 8, drawing package,
at BATES 36. These large steel structures were designed for use in both launching
and servicing the space shuttles.
5
The AFP includes a list of facilities located within the LC 39A complex that NASA
intends to use in connection with operation of LC 39B, including (1) AC Power, J81708 Launch Pad 39A HV; (2) a gaseous nitrogen battery, high pressure storage,
pad A&B; and (3) a helium storage battery, high pressure storage, pad A&B. AR,
exh. 4, list of NASA maintained systems at LC 39A, at BATES 18.
Blue Origin also argues that the lessee will provide other benefits to NASA in
connection with operating and maintaining LC 39A, including meeting NASAs
obligations to provide responses to environmental issues existing as a consequence
of past launches at LC 39A, and also preserving various historical artifacts that exist
at LC 39A. NASA responds that it has discharged, or will discharge, all of its
obligations relating to environmental remediation and historical preservation of
LC 39A.
Page 4
B-408823
In response to the protesters arguments, NASA asserts that it has no current or

future foreseeable need for LC 39A. According to the agency, if it is unable to lease
LC 39A, it is prepared to let it rust to the ground. Agency Motion for Dismissal,
Sept. 9, 2013, at 5 n.1. NASA contends that maintenance of the various elements
of the LC 39A complex (such as the FSS and RSS) is unnecessary to ensure the
safety of its workers. NASA also argues that it has no need for a maintained or
improved launch facility. NASA summarizes as follows:
Protester concludes by speculating that there may come a time when
the Agency needs LC 39A again--either in support of its commercial
crew program or perhaps for a heretofore unthought-of program,
highlighting that the Agency "is clearly conscious of this potential
benefit, otherwise the AFP would not require a lessee to maintain
Launch Complex 39 A." [Citation omitted.] The Agency is insisting
that the ultimate operator of LC 39A operate and maintain LC 39A for
the operator's benefit, not the Government's. Indeed, such an
assumption of responsibility is the only thing that makes a lease
legally permissible under the auspices of the CSLA [Commercial
Space Launch Act]. See generally 51 U.S.C. 50913 (stipulating that
the authority to lease under the CSLA is only available if the
government is providing "launch or reentry property of the United
States Government that is excess or otherwise is not needed for
public use). The Agency might also have a future requirement for flux
capacitors and warp drives. But future requirements, whether ethereal
or concrete, real or imagined, are not current bona fide needs. CICA
jurisdiction does not attach absent a current requirement necessitating
procurement for goods or services.
Agency Legal Memorandum, Oct. 21, 2013, at 8 (emphasis in original).
Under the Competition in Contracting Act of 1984 (CICA), we review protests
concerning alleged violations of procurement statutes or regulations by federal
agencies in the award or proposed award of contracts for the procurement of goods
and services, and solicitations leading to such awards. 31 U.S.C. 3551, 3552
(2006); see also 4 C.F.R. 21.1(a) (2013). As a general matter, our jurisdiction
does not extend to challenges concerning the sale or lease of government property
since these activities, by their nature, are not procurements. Meyers Cos., Inc.,
B-275963 et al., Apr. 23, 1997, 97-1 CPD 148 at 4 (lease of federal land is not a
procurement of property or services encompassed by GAOs bid protest jurisdiction,
notwithstanding the lease requirement to erect and maintain fencing).
On the other hand, we have recognized that certain transactions can involve both a
sale (or lease) of government property and a procurement of goods or services, and
we have taken jurisdiction in these so-called mixed transaction cases. For
example, in Armed Forces Hospitality, LLC, B-298978.2, B-298978.3, Oct. 1, 2009,
Page 5
B-408823
2009 CPD 192, we took jurisdiction over a protest where the Army sought to
obtain renovated or improved transient housing facilities at specified installations.
In effect, the transaction contemplated that the Army would transfer ownership of
certain physical facilities, and provide a long-term lease of government land, at no
cost to the contractor. In return, the contractor would be responsible to construct (or
renovate) housing facilities that would be financed, owned, operated and
maintained by the contractor at no cost to the government. In that case, we took
jurisdiction over the protest because we concluded that the Army obtained a direct
benefit from the transaction. Id. at 8.
These mixed transaction type cases fall into two broad categories. The first
category is those cases where we have taken jurisdiction because the agency
receives some direct, but arguably intangible, benefit that aids the agency in the
discharge of its mission. For example, we have found that a benefit was conferred
to the government through a concession for haircuts for new Air Force recruits (paid
for by the recruits), because the concession agreement is a contract for services
under which the [agency] will satisfy its need to obtain initial haircuts for its recruits-which the agency insists is an important aspect of the training experience. Gino
Morena Enters., B-224235, Feb. 5, 1987, 87-1 CPD 121 at 4. Similarly, we have
found that a benefit was conferred on the government through a concession for
photocopy services at a U.S. District Court because the use of a concession-type
contract aided the courts mission by reducing its workload and also providing a
benefit to the public of more effective access to court records. West Coast Copy,
Inc.; Pacific Photocopy & Research Servs., B-254044, B-254044.2, Nov. 16, 1993,
93-2 CPD 283 at 5-6; see also, New York Tel. Co.; New England Tel. & Tel. Co.;
Bell Atlantic Network Servs., Inc., B-236023, B-236097, Nov. 7, 1989, 89-2 CPD
435 at 2-3 (concession to provide pay phone services to employees and visitors at
a General Services Administration facility was subject to GAO protest jurisdiction
where the services were intended to satisfy agency mission needs); Armed Forces
Hospitality, LLC, supra, (discussed above).7
The second category is those cases where a more concrete or tangible benefit is
conferred on the agency as part of a mixed transaction. These cases often are
hybrid concession type arrangements that require the delivery of goods and/or
7
In support of its position, NASA directs our attention to our decision in

Rocketplane Kistler, B-310741, Jan. 28, 2008, 2008 CPD 22. According to the
agency, this case stands for the proposition that our Office will not take jurisdiction
in cases solely involving an intangible benefit to the agency. That decision is
inapposite. The case did not involve a question concerning whether the agency
was engaged in a mixed use transaction, but, rather, whether NASA was
permitted to use its special, separate other transactions statutory authority rather
than conduct a procurement.
Page 6
B-408823
services to the government that are of more than a de minimus value. See Shields
& Dean Concessions, Inc., B-292901.2, B-292901.3, Feb. 23, 2004, 2004 CPD
42, recon. denied, B-292901.4, Mar. 19, 2004, 2004 CPD 71 (concessionaire
required to provide maintenance, repair and other services for government facility
as well as facility improvement valued at over $800,000); Starfleet Marine Transp.,
Inc., B-290181, July 5, 2002, 2002 CPD 113 (concessionaire for ferryboat
services required to provide janitorial services for agencys docks and piers, equip
ferries with public address systems for use by park rangers, and provide
transportation for rangers).
We conclude that the transaction here falls into both of these categories. First, as
noted by the terms of the AFP itself, the contemplated lease transaction will:
[F]urther support NASA in fulfilling its mandate to, seek and
encourage, to the maximum extent possible, the fullest commercial
use of space. 51 U.S.C. 20112(a)(4) [(Supp IV, 2010)]. Such use is
also authorized under the Commercial Space Launch Act, 51 U.S.C.
50913(a)(1) [(Supp IV, 2010)], which encourages the acquisition by
the private sector of launch or reentry property of the U.S.
Government that is excess or otherwise not needed for public use.
AFP at BATES 5. Thus, the contemplated transaction will provide a benefit to
NASA in the form of directly fulfilling its statutory mandate to seek and encourage
the commercial use of space. The intangible benefit of directly assisting NASA in
fulfilling its statutory mandate is adequate to confer jurisdiction on our Office.
Armed Forces Hospitality, LLC, supra; Gino Morena Enters., supra.
Second, this transaction also confers a concrete benefit on NASA because the
successful contractor will be required to operate and maintain LC 39A in some
configuration. At a minimum, the successful contractor will be required to maintain
the preexisting structures at LC 39A, notably the FSS and the RSS. More
practically, since the FSS and RSS were designed specifically as a launch
configuration to be used for space shuttle launches, the more likely scenario is that
the successful contractor will either modify the FSS and RSS, or alternatively, will
demolish the FSS and RSS and construct some other configuration in its place.8 In
8
We note that LC 39B, the companion launch complex to LC 39A, is being

reconfigured by NASA as a clean launch pad that does not include any launcher
superstructure. LC 39B is described in the Kennedy Space Center Resource
Encyclopedia (KSCRE) (which was incorporated in the AFP by reference), as
follows:
As of press time, Launch Pad 39B was being reconfigured to support
a clean pad concept. This concept will allow rockets to be transported
(continued...)
Page 7
B-408823
all of these scenarios, NASA will be left at the conclusion of the lease agreement
either with a well-maintained launch complex in its current configuration, or a
reconfigured launch complex that will be useful in one manner or another.
In the final analysis, NASAs position essentially amounts to an assertion that it will
not be benefitted by the transaction because it has no further use for LC 39A.
Notably absent from the agencys position, however, is any explanation for why, if
NASA truly has no further use for LC 39A, it simply does not sell it outright, as it is
authorized to do under the CSLA. 51 U.S.C. 50913. Absent such a sale, NASA
will be left at the end of the transaction with a launch complex that is at least
maintained in its current configuration, and may well be improved by the tenant
contractor. Under these circumstances, we conclude that a concrete benefit that is
more than de minimus is being conferred on NASA; correspondingly, we find that
our Office has jurisdiction to consider Blue Origins protest because the transaction
at issue constitutes a procurement for goods and services by NASA.
PROTEST
As noted above, Blue Origin filed an agency-level protest arguing that the NASA
Administrators remarks (regarding the use of LC 39B as a multi-user facility)
demonstrated that NASA intended to evaluate proposals in a manner that was
inconsistent with what Blue Origin viewed as the requirements of the AFP. AR,
exh. 17, Blue Origin Agency-Level Protest. Blue Origin maintained in its agencylevel protest that NASA improperly intended to ignore what it views as the AFPs
preference for a multi-user approach. Id. In response to the agency-level protest,
NASA concluded, contrary to the position of Blue Origin, that the AFP did not
include a preference for a multi-user approach for LC 39A. AR, exh. 18, NASA
Response to Blue Origin Agency-Level Protest. After learning of the agencys
views, Blue Origin filed the instant protest within 10 days of receiving NASAs
response to its agency-level protest.
As an initial matter, we note that this case comes before us in an unusual
procedural posture. On the one hand, challenges to the terms of a solicitation, to be
timely, must be filed in our Office prior to the deadline for submitting proposals.
(...continued)
to the pad on their own launcher, increasing versatility and flexibility
and allowing the center to support multiple types of launch systems.
KSCRE at 273. See http://tdglobal.ksc.nasa.gov/servlet/sm.web.Fetch/KHB1863?rhid=1000&did=35173&type=released&rev=$latest. Indeed, in the event that
a clean pad technical approach is implemented by the successful contractor, the
facility could be useful to NASA because, as described by the agency itself, such a
configuration will increase the versatility and flexibility of the launch complex. Id.
Page 8
B-408823
4 C.F.R. 21.2(a)(1). This case, while apparently presenting a solicitation

challenge, does not fall under that timeliness requirement because Blue Origin had
no basis, prior to the submission of proposals and the remarks of the NASA
administrator, to know that NASA interpreted the AFP in a manner that was
inconsistent with Blue Origins interpretation.9
On the other hand, protests that maintain that an agency has evaluated proposals in
a manner that is inconsistent with the terms of a solicitation typically are filed after
the agency announces its source selection decision, consistent with the requirement
that a protest must be filed within 10 days of adverse agency action. 4 C.F.R.
21.2(a)(2). We typically dismiss as speculative and premature protests alleging
that an agency intends to evaluate proposals in a manner inconsistent with the
terms of a solicitation that are filed prior to the agencys actual evaluation of
proposals. Cryo Tech., B-406003, Jan. 18, 2012, 2012 CPD 29 at 2 n.1.
Here, Blue Origin filed in our Office within 10 days of being expressly advised by
NASA that the agency interpreted the AFP in a manner that was inconsistent with
Blue Origins interpretation. The protest is not speculative or premature, because
NASA effectively has announced how it intends to evaluate proposals--that is, in a
manner that is inconsistent with Blue Origins reading of the AFP. The protest also
is timely because it was filed within 10 days of Blue Origin being advised--through
an adverse ruling on its agency-level protest--of NASAs position regarding its
interpretation of the AFP. 4 C.F.R. 21.2(a)(2). In addition, we conclude that this
is the best possible time for our Office to consider the protest. NASA has made
clear its intentions regarding how it will evaluate proposals and Blue Origin has
made clear its position that it thinks the AFP requires something different in the
evaluation of proposals. The most efficient, least intrusive alternative is for our
Office to consider the issue now rather than to wait until the acquisition proceeds to
a source selection decision.
Turning to the merits of the protest, Blue Origin maintains that the AFP includes a
preference favoring a multi-user, rather than exclusive use, approach for LC 39A,
but that NASA has made it clear that it does not intend to implement that preference
in its evaluation of proposals. In support of its position, Blue Origin directs our
attention to two provisions of the AFP. The first provision is included in the
instructions to prospective offerors and provides as follows:
Proposers shall stipulate whether they intend to operate LC 39A as an
exclusive or multi-user facility. If exclusive use is proposed,
9
In effect, the solicitation included a latent ambiguity that was not evident until Blue
Origin learned initially of the remarks of the NASA Administrator and, subsequently,
the agency made its position known in responding to Blue Origins agency-level
protest.
Page 9
B-408823
Proposers shall provide rationale explaining why exclusive use is

needed. If a multi-user facility is proposed, the Proposer shall
describe its methodology for accommodating and managing multiple
users.
AFP at BATES 8. The second provision is included in the AFPs proposal
evaluation section and provides as follows:
NASA will evaluate the proposed use of LC 39A (exclusive or multiuse) only in terms of meeting the Governments objective. If a multiuser facility is proposed, NASA will evaluate the proposed
methodology for accommodating and managing multiple users. If an
exclusive use is proposed, NASA will evaluate the sufficiency of
rationale provided as to why exclusive use is needed.
AFP at BATES 11.
According to the protester these two provisions establish a requirement that an
offeror proposing exclusive use of LC 39A provide its rationale for why such an
arrangement is needed, and also require that NASA evaluate the sufficiency of that
rationale. In contrast, according to the protester, offerors proposing a multi-user
approach are not required to provide a rationale for their approach, and NASA is not
required to evaluate any such underlying rationale.
The protester reasons that, because the AFP requires additional information and
analysis with respect to a proposal for an exclusive use approach (what Blue Origin
describes as an explanation for the need to use the launch pad exclusively), it
follows that the AFP includes an inherent preference for a multi-user approach,
because such additional information and analysis is not required for the latter
approach. According to Blue Origin, an exclusive use approach--and the need
therefor--will only be considered under the terms of AFP where there is no
acceptable proposal for a multi-user approach; in effect, the protester maintains that
the multi-user approach is the default approach envisioned by the AFP.
The agency responds that it will not ignore the terms of the AFP because the AFP,
on its face, is agnostic regarding an exclusive versus multi-use approach. The
agency explains that it is concerned only with achieving the best possible use of LC
39A, consistent with its objective to achieve the fullest commercial use of space.
According to the agency, the AFP provisions identified by Blue Origin simply require
information--and agency analysis of that information--that would be unique to an
exclusive use approach. The agency contends that the AFP was not drafted to give
a preference to one approach versus another, but simply seeks information specific
to each approach that will enable the agency to assess the comparative merits of
those approaches to meeting the governments objective.
Page 10
B-408823
We find that the agencys interpretation of its AFP is reasonable. Where a dispute
exists as to the meaning of a particular solicitation provision, our Office will resolve
the matter by reading the solicitation as a whole and in a manner that gives effect to
all of its provisions; to be reasonable, an interpretation must be consistent with such
a reading. Kevcon, Inc., B-406024.3, June 18, 2012, 2012 CPD 221 at 3. The
interpretation that should prevail is the one that gives reasonable meaning to all
provisions and does not render any part absurd or create conflicts among the
solicitations provisions. Canupp Trucking, Inc., B-261127, Feb. 15, 1996, 96-1
CPD 137 at 4.
The AFP includes a declaration of the governments objective in awarding the lease
as follows:
NASA will evaluate the Proposers overall understanding of the
objective and the adequacy of the proposed approach to meeting that
objective, i.e. the company which has the best demonstrated
capability to assume full financial and technical responsibility for
operations and maintenance of LC 39A for a term during which the
company will make use of LC 39A in a manner that supports the
fullest commercial use of space.
AFP at BATES 8. In effect, NASA seeks to determine which offeror demonstrates
the best capability to assume responsibility for operating LC 39A in a manner that
supports the fullest commercial use of space. In order to assist NASA in making
this determination, the AFP elicits different information depending on which
approach--multi-user versus exclusive use--is being offered.
In the case of an exclusive use approach, the AFP requires an explanation for why
such an approach is necessary. This is a logical inquiry to be made in connection
with an exclusive use approach, since such an approach necessarily will preclude
other concerns from using the facility during the term of the lease. There could well
be a strong case for an exclusive use approach depending upon information relating
to variables that is not currently in the record before our Office, but we need not
consider that question at this time.10
The AFP elicits different information from an offeror proposing a multi-user
approach; the offeror must provide information relating to its proposed methodology
for accommodating and managing multiple users. Like the information elicited from
an offeror proposing an exclusive use arrangement, this information is logically
related to the proposed approach, because such an approach poses technical
10
For example, the comparative maturity of one concerns launch vehicle

capabilities versus the maturity of another concerns launch vehicle capabilities
could positively affect the number of launches possible during the lease term.
Page 11
B-408823
challenges not present in an exclusive use setting. As with an exclusive use

approach, there could well be a strong case for a multi-user approach depending
upon information relating to variables that is not currently in the record before our
Office, but we also need not consider that question at this time.11
In the final analysis, we agree with the agency that the AFP contemplates two
possible approaches, but includes no preference for one approach versus another.
The approaches are different--and require the presentation of different information
to substantiate the plan being offered--but there currently is nothing in the record
beyond the protesters arguments to show that either approach necessarily is better
in terms of meeting the agencys objective of achieving the fullest commercial use of
space. Simply stated, that question will be resolved based on the comparative
strength of the business cases presented by the offerors.
However, the case at hand only concerns whether the agencys interpretation of the
AFP is reasonable and, based on our discussion above, we conclude that nothing in
the language of the AFP favors one approach over the other.
The protest is denied.
Susan A. Poling
General Counsel
11
For example, a robust demonstration of a concerns capability to manage the

logistics and scheduling challenges posed by a multi-user approach also could
positively affect the number of launches possible during the lease term.
Page 12
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PUBLIC LAW 112239JAN. 2, 2013
dkrause on DSKHT7XVN1PROD with KATH
NATIONAL DEFENSE AUTHORIZATION ACT

FOR FISCAL YEAR 2013
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126 STAT. 1664
SEC. 152. PROCUREMENT OF SPACE-BASED INFRARED SYSTEMS SATELLITES.
Notification.
Determination.
Certification.
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(a) CONTRACT AUTHORITY.

(1) IN GENERAL.The Secretary of the Air Force may procure two space-based infrared systems satellites by entering
into a fixed-price contract. Such procurement may also
include
(A) material and equipment in economic order quantities when cost savings are achievable; and
(B) cost-reduction initiatives.
(2) USE OF INCREMENTAL FUNDING.With respect to a contract entered into under paragraph (1) for the procurement
of space-based infrared systems satellites, the Secretary may
use incremental funding for a period not to exceed six fiscal
years.
(3) LIABILITY.A contract entered into under paragraph
(1) shall provide that any obligation of the United States to
make a payment under the contract is subject to the availability
of appropriations for that purpose, and that the total liability
to the Government for termination of any contract entered
into shall be limited to the total amount of funding obligated
at the time of termination.
(b) LIMITATION OF COSTS.
(1) LIMITATION.Except as provided by subsection (c), and
excluding amounts described in paragraph (2), the total amount
obligated or expended for the procurement of two space-based
infrared systems satellites authorized by subsection (a) may
not exceed $3,900,000,000.
(2) EXCLUSION.The amounts described in this paragraph
are amounts associated with the following:
(A) Plans.
(B) Technical data packages.
(C) Post delivery and program support costs.
(D) Technical support for obsolescence studies.
(c) WAIVER AND ADJUSTMENT TO LIMITATION AMOUNT.
(1) WAIVER.In accordance with paragraph (2), the Secretary may waive the limitation in subsection (b)(1) if the
Secretary submits to the congressional defense committees and
the Permanent Select Committee on Intelligence of the House
of Representatives written notification of the adjustment made
to the amount set forth in such subsection.
(2) ADJUSTMENT.Upon waiving the limitation under paragraph (1), the Secretary may adjust the amount set forth in
subsection (b)(1) by the following:
(A) The amounts of increases or decreases in costs
attributable to economic inflation after September 30, 2012.
(B) The amounts of increases or decreases in costs
attributable to compliance with changes in Federal, State,
or local laws enacted after September 30, 2012.
(C) The amounts of increases or decreases in costs
of the satellites that are attributable to insertion of new
technology into a space-based infrared system, as compared
to the technology built into such a system procured prior
to fiscal year 2013, if the Secretary determines, and certifies to the congressional defense committees, that insertion of the new technology is
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126 STAT. 1665
(i) expected to decrease the life-cycle cost of the

system; or
(ii) required to meet an emerging threat that poses
grave harm to national security.
(d) REPORT.Not later than 30 days after the date on which
the Secretary awards a contract under subsection (a), the Secretary
shall submit to the congressional defense committees and the
Permanent Select Committee on Intelligence of the House of Representatives a report on such contract, including the following:
(1) The total cost savings resulting from the authority
provided by subsection (a).
(2) The type and duration of the contract awarded.
(3) The total contract value.
(4) The funding profile by year.
(5) The terms of the contract regarding the treatment of
changes by the Federal Government to the requirements of
the contract, including how any such changes may affect the
success of the contract.
(6) A plan for using cost savings described in paragraph
(1) to improve the capability of overhead persistent infrared,
including a description of
(A) the available funds, by year, resulting from such
cost savings;
(B) the specific activities or subprograms to be funded
by such cost savings and the funds, by year, allocated
to each such activity or subprogram;
(C) the objectives for each such activity or subprogram
and the criteria used by the Secretary to determine which
such activity or subprogram to fund;
(D) the method in which such activities or subprograms
will be awarded, including whether it will be on a competitive basis; and
(E) the process for determining how and when such
activities and subprograms would transition to an existing
program or be established as a new program of record.
(e) USE OF FUNDS AVAILABLE FOR SPACE VEHICLE NUMBERS
5 AND 6.The Secretary may obligate and expend amounts authorized to be appropriated for fiscal year 2013 by section 101 for
procurement, Air Force, as specified in the funding table in section
4101 and available for the advanced procurement of long-lead parts
and the replacement of obsolete parts for space-based infrared
system satellite space vehicle numbers 5 and 6.
(f) SENSE OF CONGRESS.It is the sense of Congress that the
Secretary should not enter into a fixed-price contract under subsection (a) for the procurement of two space-based infrared system
satellites unless the Secretary determines that entering into such
a contract will save the Air Force substantial savings, as required
under section 2306b of title 10, United States Code, over the cost
of procuring two such satellites separately.
Determination.
SEC. 153. LIMITATION ON AVAILABILITY OF FUNDS FOR EVOLVED

EXPENDABLE LAUNCH VEHICLE PROGRAM.
(a) LIMITATION.Of the funds authorized to be appropriated

by this Act or otherwise made available for fiscal year 2013 for
the Air Force for the evolved expendable launch vehicle program,
10 percent may not be obligated or expended until the date on
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126 STAT. 1666
Reports.
Certification.
Deadline.
Reports.
Briefing.
which the Secretary of the Air Force submits to the appropriate

congressional committees
(1) a report describing the acquisition strategy for such
program; and
(2) written certification that such strategy
(A) maintains assured access to space;
(B) achieves substantial cost savings; and
(C) provides opportunities for competition.
(b) MATTERS INCLUDED.The report under subsection (a)(1)
shall include the following information:
(1) The anticipated savings to be realized under the acquisition strategy for the evolved expendable launch vehicle program.
(2) The number of launch vehicle booster cores covered
by the planned contract for such program.
(3) The number of years covered by such contract.
(4) An assessment of when new entrants that have submitted a statement of intent will be certified to compete for
evolved expendable launch vehicle-class launches.
(5) The projected launch manifest, including possible
opportunities for certified new entrants to compete for evolved
expendable launch vehicle-class launches.
(6) Any other relevant analysis used to inform the acquisition strategy for such program.
(c) COMPTROLLER GENERAL.
(1) REVIEW.The Comptroller General of the United States
shall review the report under subsection (a)(1).
(2) SUBMITTAL.Not later than 30 days after the date
on which the report under subsection (a)(1) is submitted to
the appropriate congressional committees, the Comptroller General shall
(A) submit to such committees a report on the review
under paragraph (1); or
(B) provide to such committees a briefing on such
review.
(d) APPROPRIATE CONGRESSIONAL COMMITTEES DEFINED.In
this section, the term appropriate congressional committees means
the following:
(1) The congressional defense committees.
(2) The Permanent Select Committee on Intelligence of
the House of Representatives and the Select Committee on
Intelligence of the Senate.
SEC. 154. LIMITATION ON AVAILABILITY OF FUNDS FOR RETIREMENT

OF RQ4 GLOBAL HAWK UNMANNED AIRCRAFT SYSTEMS.
(a) LIMITATION.None of the funds authorized to be appropriated by this Act or otherwise made available for fiscal year
2013 for the Department of Defense may be obligated or expended
to retire, prepare to retire, or place in storage an RQ4 Block
30 Global Hawk unmanned aircraft system.
(b) MAINTAINED LEVELS.During the period preceding
December 31, 2014, in supporting the operational requirements
of the combatant commands, the Secretary of the Air Force shall
maintain the operational capability of each RQ4 Block 30 Global
Hawk unmanned aircraft system belonging to the Air Force or
delivered to the Air Force during such period.
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126 STAT. 1674

(2) The X-Plane Rotorcraft program of the Defense
Advanced Research Projects Agency with performance objectives beyond those of the Joint Multi-role development program,
including at least two competing teams.
(3) Approaches, including potential competitive prize
awards, to encourage the development of advanced rotorcraft
capabilities to address challenge problems such as nap-of-earth
automated flight, urban operation near buildings, slope
landings, automated autorotation or power-off recovery, and
automated selection of landing areas.
Subtitle CMissile Defense Programs

SEC. 221. PROHIBITION ON THE USE OF FUNDS FOR THE MEADS PROGRAM.
None of the funds authorized to be appropriated by this Act

or otherwise made available for fiscal year 2013 for the Department
of Defense may be obligated or expended for the medium extended
air defense system.
SEC. 222. AVAILABILITY OF FUNDS FOR IRON DOME SHORT-RANGE
ROCKET DEFENSE PROGRAM.
Of the funds authorized to be appropriated for fiscal year

2013 by section 201 for research, development, test, and evaluation,
Defense-wide, and available for the Missile Defense Agency,
$211,000,000 may be provided to the Government of Israel for
the Iron Dome short-range rocket defense program as specified
in the funding table in section 4201.
SEC. 223. AUTHORITY FOR RELOCATION OF CERTAIN AEGIS WEAPON

SYSTEM ASSETS BETWEEN AND WITHIN THE DDG51 CLASS
DESTROYER AND AEGIS ASHORE PROGRAMS IN ORDER
TO MEET MISSION REQUIREMENTS.
(a) TRANSFER TO AEGIS ASHORE SYSTEM.Notwithstanding any

other provision of law, the Secretary of the Navy may transfer
Aegis weapon system equipment with ballistic missile defense capability to the Director of the Missile Defense Agency for use by
the Director in the Aegis Ashore System for installation in the
country designated as Host Nation 1 by transferring to the Agency
such equipment procured with amounts authorized to be appropriated for shipbuilding and conversion, Navy, for fiscal years 2010
and 2011 for the DDG51 Class Destroyer Program.
(b) ADJUSTMENTS IN EQUIPMENT DELIVERIES.
(1) USE OF FY12 FUNDS FOR AWS SYSTEMS ON DESTROYERS
PROCURED WITH FY11 FUNDS.Amounts authorized to be appropriated for shipbuilding and conversion, Navy, for fiscal year
2012, and any Aegis weapon system assets procured with such
amounts, may be used to deliver complete, mission-ready Aegis
weapon systems with ballistic missile defense capability to any
DDG51 class destroyer for which amounts were authorized
to be appropriated for shipbuilding and conversion, Navy, for
fiscal year 2011.
(2) USE OF AWS SYSTEMS PROCURED WITH RDT&E FUNDS
ON DESTROYERS.The Secretary may install on any DDG51
class destroyer Aegis weapon systems with ballistic missile
defense capability transferred pursuant to subsection (c).
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126 STAT. 1675
(c) TRANSFER FROM AEGIS ASHORE SYSTEM.The Director shall

transfer Aegis weapon system equipment with ballistic missile
defense capability procured for installation in the Aegis Ashore
System to the Secretary for the DDG51 Class Destroyer Program
to replace any equipment transferred to the Director under subsection (a).
(d) TREATMENT OF TRANSFER IN FUNDING DESTROYER
CONSTRUCTION.Notwithstanding the source of funds for any equipment transferred under subsection (c), the Secretary shall fund
all work necessary to complete construction and outfitting of any
destroyer in which such equipment is installed in the same manner
as if such equipment had been acquired using amounts in the
shipbuilding and conversion, Navy, account.
SEC. 224. EVALUATION OF ALTERNATIVES FOR THE PRECISION

TRACKING SPACE SYSTEM.
(a) LIMITATION.Of the funds authorized to be appropriated

by this Act or otherwise made available for fiscal year 2013 for
the Missile Defense Agency for the precision tracking space system,
not more than 75 percent may be obligated or expended until
the date on which
(1) the Director of Cost Assessment and Program Evaluation completes the evaluation under subsection (b)(1); and
(2) the terms of reference for the evaluation under subsection (b)(1)(B) are
(A) approved by the Missile Defense Executive Board,
in coordination with the Defense Space Council; and
(B) submitted to the congressional defense committees.
(b) INDEPENDENT COST ESTIMATE AND EVALUATION OF ALTERNATIVES REQUIRED.
(1) IN GENERAL.The Director of Cost Assessment and
Program Evaluation shall perform
(A) an independent cost estimate for the precision
tracking space system; and
(B) a comprehensive assessment evaluation of alternatives for such system.
(2) BASIS OF EVALUATION.The evaluation under paragraph (1)(B) shall be based on a clear articulation by the
Director of the Missile Defense Agency of
(A) the space-based and ground-based sensors that will
be required to be maintained to aid the precision tracking
space system constellation;
(B) the number of satellites to be procured for a first
constellation, including the projected lifetime of such satellites in the first constellation, and the number projected
to be procured for a first and, if applicable, second
replenishment;
(C) the technological and acquisition risks of such
system, including systems engineering and ground system
development;
(D) an evaluation of the technological capability differences between the precision tracking space system
tracking sensor and the space tracking and surveillance
system tracking sensor;
(E) the cost differences, as confirmed by the Director
of Cost Assessment and Program Evaluation, between such
systems, including costs relating to launch services; and
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126 STAT. 1676
Time periods.
Deadline.
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(F) any other matters the Director believes useful that

do not unduly delay completion of the evaluation.
(3) EVALUATION.In conducting the evaluation under paragraph (1)(B), the Director of Cost Assessment and Program
Evaluation shall
(A) evaluate whether the precision tracking space
system, as planned by the Director of the Missile Defense
Agency in the budget submitted to Congress under section
1105 of title 31, United States Code, for fiscal year 2013,
is the most cost effective and best value sensor option
with respect to land-, air-, or space-based sensors, or a
combination thereof, to improve the regional missile
defense and homeland missile defense of the United States,
including by adding precision tracking and discrimination
capability to the ground-based midcourse defense system;
(B) examine the overhead persistent infrared satellite
data or other data that are available as of the date of
the evaluation that are not being used for ballistic missile
tracking;
(C) determine whether and how using the data
described in subparagraph (B) could improve sensor coverage for the homeland missile defense of the United States
and regional missile defense capabilities;
(D) study the plans of the Director of the Missile
Defense Agency to integrate the precision tracking space
system concept into the ballistic missile defense system
and evaluate the concept of operations and missile defense
engagement scenarios of such use;
(E) consider the agreement entered into under subsection (d)(1); and
(F) consider any other matters the Director believes
useful that do not unduly delay completion of the evaluation.
(4) COST DETERMINATION.-In conducting the independent
cost estimate under paragraph (1)(A), the Director of Cost
Assessment and Program Evaluation shall take into account
acquisition costs and operation and sustainment costs during
the initial 10-year and 20-year periods.
(5) COOPERATION.The Director of the Missile Defense
Agency shall provide to the Director of Cost Assessment and
Program Evaluation the information necessary to conduct the
independent cost estimate and the evaluation of alternatives
of such program under paragraph (1).
(c) SUBMISSION REQUIRED.Not later than April 30, 2013, the
Director of Cost Assessment and Program Evaluation shall submit
to the congressional defense committees the independent cost estimate and evaluation under subparagraphs (A) and (B) of subsection
(b)(1).
(d) MEMORANDUM OF AGREEMENT.
(1) IN GENERAL.The Director of the Missile Defense
Agency shall enter into a memorandum of agreement with
the Commander of the Air Force Space Command with respect
to the space situational awareness capabilities, requirements,
design, and cost sharing of the precision tracking space system.
(2) SUBMISSION.The Director shall submit to the congressional defense committees the agreement entered into under
paragraph (1).
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126 STAT. 1677
(e) REVIEW BY THE COMPTROLLER GENERAL.

(1) TERMS OF REFERENCE.The Comptroller General of
the United States shall provide to the congressional defense
committees
(A) by not later than 30 days after the date on which
the terms of reference for the evaluation under subsection
(b)(1)(B) are provided to such committees pursuant to subsection (a)(2), a briefing on the views of the Comptroller
General with respect to such terms of reference and their
conformance with the best practices for analyses of alternatives established by the Comptroller General; and
(B) a final report on such terms as soon as practicable
following the date of the briefing under subparagraph (A).
(2) COMPREHENSIVE PTSS ASSESSMENT.The Comptroller
General shall further provide to the congressional defense
committees
(A) by not later than 60 days after the date on which
the evaluation is submitted to such committees under subsection (c), a briefing on the views of the Comptroller
General with respect to such evaluation; and
(B) a final report on such evaluation as soon as practicable following the date of the briefing under subparagraph (A).
Deadlines.
Briefings.
Reports.
SEC. 225. NEXT GENERATION EXO-ATMOSPHERIC KILL VEHICLE.
(a) PLAN FOR NEXT GENERATION KILL VEHICLE.The Director

of the Missile Defense Agency shall develop a long-term plan for
the exo-atmospheric kill vehicle that addresses both modifications
and enhancements to the current exo-atmospheric kill vehicle and
options for the competitive development of a next generation exoatmospheric kill vehicle for the ground-based interceptor of the
ground-based midcourse defense system and any other interceptor
that might be developed for the defense of the United States against
long-range ballistic missiles.
(b) DEFINITION OF PARAMETERS AND CAPABILITIES.
(1) ASSESSMENT REQUIRED.The Director shall define the
desired technical parameters and performance capabilities for
a next generation exo-atmospheric kill vehicle using an assessment conducted by the Director for that purpose that is
designed to ensure that a next generation exo-atmospheric kill
vehicle design
(A) enables ease of manufacturing, high tolerances to
production processes and supply chain variability, and
inherent reliability;
(B) will be optimized to take advantage of the ballistic
missile defense system architecture and sensor system
capabilities;
(C) leverages all relevant kill vehicle development
activities and technologies, including from the current
standard missile3 block IIB program and the previous
multiple kill vehicle technology development program;
(D) seeks to maximize, to the greatest extent practicable, commonality between subsystems of a next generation exo-atmospheric kill vehicle and other exo-atmospheric
kill vehicle programs; and
(E) meets Department of Defense criteria, as established in the February 2010 Ballistic Missile Defense
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126 STAT. 1678

Review, for affordability, reliability, suitability, and operational effectiveness to defend against limited attacks from
evolving and future threats from long-range missiles.
(2) EVALUATION OF PAYLOADS.The assessment required
by paragraph (1) shall include an evaluation of the potential
benefits and drawbacks of options for both unitary and multiple
exo-atmospheric kill vehicle payloads.
(3) STANDARD MISSILE3 BLOCK IIB INTERCEPTOR.As part
of the assessment required by paragraph (1), the Director shall
evaluate whether there are potential options and opportunities
arising from the standard missile3 block IIB interceptor
development program for development of an exo-atmospheric
kill vehicle, or kill vehicle technologies or components, that
could be used for potential upgrades to the ground-based interceptor or for a next generation exo-atmospheric kill vehicle.
(c) REPORT.
(1) IN GENERAL.Not later than 180 days after the date
of the enactment of this Act, the Director shall submit to
the congressional defense committees a report setting forth
the plan developed under subsection (a), including the results
of the assessment under subsection (b), and an estimate of
the cost and schedule of implementing the plan.
(2) FORM.The report required by paragraph (1) shall be
submitted in unclassified form, but may include a classified
annex.
Evaluation.
SEC. 226. MODERNIZATION OF THE PATRIOT AIR AND MISSILE

DEFENSE SYSTEM.
Deadline.
(a) PLAN FOR MODERNIZATION.Not later than 180 days after

the date of the enactment of this Act, the Secretary of the Army
shall submit to the congressional defense committees a prioritized
plan for support of the long-term requirements in connection with
the modernization of the Patriot air and missile defense system
and related systems of the integrated air and missile defense
architecture.
(b) ADDITIONAL ELEMENTS.The report required by subsection
(a) shall also set forth the following:
(1) An explanation of the requirements and goals for the
Patriot air and missile defense system and related systems
of the integrated air and missile defense architecture during
the 10-year period beginning on the date of the report.
(2) An assessment of the integrated air and missile defense
capabilities required to meet the demands of evolving and
emerging threats during the ten-year period beginning on the
date of the report.
(3) A plan for the introduction of changes to the Patriot
air and missile defense system program to achieve reductions
in the life-cycle cost of the Patriot air and missile defense
system.
SEC. 227. EVALUATION AND ENVIRONMENTAL IMPACT ASSESSMENT
OF POTENTIAL FUTURE MISSILE DEFENSE SITES IN THE
UNITED STATES.
Deadline.
Study.
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(a) EVALUATION.Not later than December 31, 2013, the Secretary of Defense shall conduct a study to evaluate at least three
possible additional locations in the United States, selected by the
Director of the Missile Defense Agency, that would be best suited
for future deployment of an interceptor capable of protecting the
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126 STAT. 1679
homeland against threats from nations such as North Korea and

Iran. At least two of such locations shall be on the East Coast
of the United States.
(b) ENVIRONMENTAL IMPACT STATEMENT REQUIRED.Except as
provided by subsection (c), the Secretary shall prepare an environmental impact statement in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. et seq.) for the locations
the Secretary evaluates under subsection (a).
(c) EXCEPTION.If an environmental impact statement has
already been prepared for a location the Secretary evaluates under
subsection (a), the Secretary shall not be required to prepare
another environmental impact statement for such location.
(d) CONTINGENCY PLAN.In light of the evaluation under subsection (a), the Director of the Missile Defense Agency shall
(1) develop a contingency plan for the deployment of a
homeland missile defense interceptor site that is in addition
to such sites that exist as of the date of the enactment of
this Act in case the President determines to proceed with
such an additional deployment; and
(2) notify the congressional defense committees when such
contingency plan has been developed.
Notification.
SEC. 228. HOMELAND BALLISTIC MISSILE DEFENSE.
(a) SENSE OF CONGRESS.It is the sense of Congress that

(1) it is a national priority to defend the United States
homeland against the threat of limited ballistic missile attack
(whether accidental, unauthorized, or deliberate);
(2) the currently deployed ground-based midcourse defense
system, with 30 ground-based interceptors deployed in Alaska
and California, provides a level of protection of the United
States homeland;
(3) it is essential for the ground-based midcourse defense
system to achieve the levels of reliability, availability, sustainability, and operational performance that will allow it to continue providing protection of the United States homeland;
(4) the Missile Defense Agency should, as its highest priority, correct the problem that caused the December 2010
ground-based midcourse defense system flight test failure and
demonstrate the correction in flight tests before resuming
production of the capability enhancement-II kill vehicle, in
order to provide confidence that the system will work as
intended;
(5) the Department of Defense should continue to enhance
the performance and reliability of the ground-based midcourse
defense system, and enhance the capability of the ballistic
missile defense system, to provide improved capability to defend
the homeland;
(6) the Missile Defense Agency should have a robust, rigorous, and operationally realistic testing program for the
ground-based midcourse defense system, including salvo
testing, multiple simultaneous engagement testing, and operational testing;
(7) the Department of Defense has taken a number of
prudent, affordable, cost-effective, and operationally significant
steps to hedge against the possibility of future growth in the
missile threat to the homeland from North Korea and Iran;
and
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126 STAT. 1680

(8) the Department of Defense should continue to evaluate
the evolving threat of limited ballistic missile attack, particularly from countries such as North Korea and Iran, and consider
other possibilities for prudent, affordable, cost-effective, and
operationally significant steps to improve the posture of the
United States to defend the homeland.
(b) REPORT.
(1) REPORT REQUIRED.Not later than 180 days after the
date of the enactment of this Act, the Secretary of Defense
shall submit to the congressional defense committees a report
on the status of efforts to improve the homeland ballistic missile
defense capability of the United States.
(2) ELEMENTS OF REPORT.The report required by paragraph (1) shall include the following:
(A) A detailed description of the actions taken or
planned to improve the reliability, availability, and capability of the ground-based midcourse defense system,
particularly the exoatmospheric kill vehicle, and any other
actions to improve the homeland missile defense posture
to hedge against potential future growth in the threat
of limited ballistic missile attack (whether accidental,
unauthorized, or deliberate), particularly from countries
such as North Korea and Iran.
(B) A description of any improvements achieved as
a result of the actions described in subparagraph (A).
(C) A description of the results of the two planned
flight tests of the ground-based midcourse defense system
(control test vehicle flight test1, and GMD flight test
06b) intended to demonstrate the success of the correction
of the problem that caused the flight test failure of
December 2010, and the status of any decision to resume
production of the capability enhancement-II kill vehicle.
(D) a detailed description of the planned roles and
requirements for the standard missile-3 block IIB interceptor to augment the defense of the homeland, including
the capabilities needed to defeat long-range missiles that
could be launched from Iran to the United States;
(E) Any other matters the Secretary considers appropriate.
(3) FORM OF REPORT.The report shall be submitted in
unclassified form, but may include a classified annex.
(c) COMPTROLLER GENERAL BRIEFING AND REPORT.
(1) BRIEFING.Not later than 60 days after the date on
which the Secretary submits the report under subsection (b)(1),
the Comptroller General of the United States shall brief the
congressional defense committees with the views of the Comptroller General on the report.
(2) REPORT.As soon as practicable after the date on which
the Comptroller General briefs the congressional defense
committees under paragraph (1), the Comptroller General shall
submit to such committees a report on the views included
in such briefing.
SEC. 229. REGIONAL BALLISTIC MISSILE DEFENSE.
(a) SENSE OF CONGRESS.It is the sense of Congress that

(1) the threat from regional ballistic missiles, particularly
from Iran and North Korea, is serious and growing, and puts
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126 STAT. 1681
at risk forward-deployed forces of the United States and allies

and partners in Europe, the Middle East, and the Asia-Pacific
region;
(2) the Department of Defense has an obligation to provide
force protection of forward-deployed forces, assets, and facilities
of the United States from regional ballistic missile attack;
(3) the United States has an obligation to meet its security
commitments to its allies, including ballistic missile defense
commitments;
(4) the Department of Defense has a program of investment
and capabilities to provide for both homeland defense and
regional defense against ballistic missiles, consistent with the
Ballistic Missile Defense Review of 2010 and with the
prioritized and integrated needs of the commanders of the
combatant commands;
(5) the European Phased Adaptive Approach to missile
defense is a response to the existing and growing ballistic
missile threat from Iran to forward deployed United States
forces, allies and partners in Europe;
(6) the Department of Defense
(A) should, as a high priority, continue to develop,
test, and plan to deploy all four phases of the European
Phased Adaptive Approach, including all variants of the
standard missile3 interceptor;
(B) should continue to conduct tests to evaluate and
assess the capability of future phases of the European
Phased Adaptive Approach and to demonstrate whether
they will achieve their intended roles, as outlined in the
Ballistic Missile Defense Review of 2010; and
(C) should also continue with its other phased and
adaptive regional missile defense efforts tailored to the
Middle East and the Asia-Pacific region; and
(7) European members of the North Atlantic Treaty
Organization are making a variety of contributions to missile
defense in Europe, by hosting elements of missile defense systems of the United States on their territories, through individual national contributions to missile defense capability, and
by collective funding and development of the Active Layered
Theater Ballistic Missile Defense system; and
(8) allies and partners of the United States in the AsiaPacific region and in the Middle East are making contributions
to regional missile defense capabilities, including by hosting
elements of missile defense systems of the United States on
their territories; jointly developing missile defense capabilities;
and cooperating in regional missile defense architectures.
(b) REPORT.
of the enactment of this Act, the Secretary of Defense shall
submit to the congressional defense committees a report
describing the status and progress of regional missile defense
programs and efforts.
(2) ELEMENTS OF REPORT.The report required by paragraph (1) shall include the following:
(A) An assessment of the adequacy of the existing
and planned European Phased Adaptive Approach to provide force protection for forward-deployed forces of the
United States in Europe against ballistic missile threats
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126 STAT. 1682
Briefing.
Deadline.
Reports.
from Iran, and an assessment whether adequate force

protection would be available absent the European Phased
Adaptive Approach, given current and planned Patriot, Terminal High Altitude Area Defense, and Aegis ballistic missile defense capability.
(B) A description of the progress made in the development and testing of elements of systems intended for
deployment in Phases 2 through 4 of the European Phased
Adaptive Approach, and an assessment of technical and
schedule risks.
(C) A description of the missile defense priorities and
capability needs of the regional combatant commands, and
the planned regional missile defense architectures derived
from those capability needs and priorities.
(D) A description of the global force management
process used to evaluate the missile defense capability
needs of the regional combatant commands and to determine the resource allocation and deployment outcomes
among such commands.
(E) A description of the missile defense command and
control concepts and arrangements in place for United
States and allied regional missile defense forces, and the
missile defense partnerships and burden-sharing arrangements in place between the United States and its allies
and partners.
submitted in unclassified form, but may include a classified
annex.
(c) COMPTROLLER GENERAL VIEWS.The Comptroller General
of the United States shall
(1) brief the congressional defense committees with the
views of the Comptroller General on the report under subsection
(b)(1) by not later than 60 days after the date on which the
Secretary submits such report; and
(2) submit to such committees a written report on such
views as soon as practicable after the date of the briefing
under paragraph (1).
SEC. 230. NATO CONTRIBUTIONS TO MISSILE DEFENSE IN EUROPE.
Deadline.
Reports.
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(a) IN GENERAL.Not later than 180 days after the date of

the enactment of this Act, the Secretary of Defense shall submit
to the congressional defense committees a report on contributions
of members of the North Atlantic Treaty Organization to missile
defense in Europe.
(b) ELEMENTS.The report required under subsection (a) shall
include a discussion of the full range of contributions made by
members of NATO, individually and collectively, to missile defense
in Europe, including the following:
(1) Financial contributions to the development of the Active
Layered Theater Ballistic Missile Defense command and control
system or other NATO missile defense capabilities, including
the European Phased Adaptive Approach.
(2) National contributions of missile defense capabilities
to NATO.
(3) Agreements to host missile defense facilities in the
territory of the member state.
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126 STAT. 1683
(4) Contributions in the form of providing support,

including security, for missile defense facilities in the territory
of the member state.
(5) Any other contributions being planned by members
of NATO, including the modification of existing military systems to contribute to the missile defense capability of NATO.
(6) A discussion of whether there are other opportunities
for future contributions, financial and otherwise, to missile
defense by members of NATO.
(7) Any other matters the Secretary determines appropriate.
(c) FORM OF REPORT.The report required by subsection (a)
shall be submitted in unclassified form, but may include a classified
annex.
SEC. 231. REPORT ON TEST PLAN FOR THE GROUND-BASED MIDCOURSE DEFENSE SYSTEM.
(a) REPORT REQUIRED.Not later than 180 days after the date
of the enactment of this Act, the Secretary of Defense shall submit
to the congressional defense committees a report on the testing
program for the ground-based midcourse defense element of the
ballistic missile defense system.
(b) ELEMENTS.The report under subsection (a) shall include
the following:
(1) An explanation of testing options for the ground-based
midcourse defense system if planned flight tests CTV01 and
FTG06b do not demonstrate the successful correction to the
problem that caused the failure of the capability enhancement
2 kill vehicle in flight test FTG06a in December 2010,
including additional testing of the capability enhancement
1 kill vehicle.
(2) An assessment of the feasibility, advisability, and cost
effectiveness (including the potential benefits, risks, and impact
on the current test plan and integrated master test plan for
the ground-based midcourse defense system) of adjusting the
test plan of the ground-based midcourse defense system to
accomplish, at an acceptable level of risk
(A) accelerating to fiscal year 2014 the date for testing
such system using a capability enhancement1 kill vehicle
against an intercontinental ballistic missile-range target;
and
(B) increasing the pace of the flight testing of such
system to a rate of three tests every two years.
(3) If the Secretary determines that either option described
in subparagraph (A) or (B) of paragraph (2) would be feasible,
advisable, and cost effective, a discussion of whether increased
funding beyond the funding requested in the budget for fiscal
year 2013 is required to carry out such options and, if so,
what level of increased funding would be necessary to carry
out each such option.
(4) Any additional matters the Secretary determines appropriate.
(c) DOT&E VIEWS.The Secretary shall include an appendix
to the report under subsection (a) that contains the views of the
Director of Operational Test and Evaluation regarding the contents
of the report.
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126 STAT. 1684
Briefing.
(d) FORM.The report under subsection (a) shall be submitted

in unclassified form, but may include a classified annex.
(e) COMPTROLLER GENERAL VIEWS.The Comptroller General
of the United States shall
(1) brief the congressional defense committees concerning
the views of the Comptroller General on the report required
under subsection (a) by not later than 60 days after the date
on which the Secretary submits such report; and
(2) submit to such committees a written report on such
views as soon as practicable after the date of the briefing
under paragraph (1).
SEC. 232. SENSE OF CONGRESS ON MISSILE DEFENSE.
(a) FINDINGS.Congress finds the following:

(1) In a December 18, 2010, letter to the Senate leadership,
President Obama wrote that the North Atlantic Treaty
Organization (NATO) invited the Russian Federation to
cooperate on missile defense, which could lead to adding Russian capabilities to those deployed by NATO to enhance our
common security against common threats. The Lisbon Summit
thus demonstrated that the Alliances missile defenses can be
strengthened by improving NATO-Russian relations. This
comes even as we have made it clear that the system we
intend to pursue with Russia will not be a joint system, and
it will not in any way limit United States or NATOs missile
defense capabilities..
(2) In a February 2, 2011, message to the Senate concerning
its December 22, 2010, Resolution of Advice and Consent to
Ratification of the New START Treaty, President Obama certified that It is the policy of the United States to continue
development and deployment of United States missile defense
systems to defend against missile threats from nations such
as North Korea and Iran, including qualitative and quantitative
improvements to such systems. As stated in the Resolution,
such systems include all phases of the Phased Adaptive
Approach to missile defense in Europe, the modernization of
the Ground-based Midcourse Defense system, and the continued
development of the two-stage Ground-Based Interceptor as a
technological and strategic hedge..
(3) In a letter dated December 13, 2011, to Senator Mark
Kirk, Robert Nabors, Assistant to the President and Director
of the Office of Legislative Affairs, wrote that The United
States remains committed to implementing the European
Phased Adaptive Approach to missile defense, and will not
agree to any constraints limiting the development or deployment of United States missile defenses and [w]e will not
provide Russia with sensitive information about our missile
defense systems that would in any way compromise our national
security. For example, hit-to-kill technology and interceptor
telemetry will under no circumstances be provided to Russia..
(b) SENSE OF CONGRESS.It is the sense of Congress that
(1) pursuant to section 2 of the National Missile Defense
Act of 1999 (Public Law 10638; 113 Stat. 205; 10 U.S.C.
2431 note), it is the policy of the United States to deploy
as soon as is technologically possible an effective National
Missile Defense system capable of defending the territory of
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126 STAT. 1685
the United States against limited ballistic missile attack

(whether accidental, unauthorized, or deliberate)...;
(2) defenses against ballistic missiles are essential for new
deterrent strategies and for new strategies should deterrence
fail;
(3) further limitations on the missile defense capabilities
of the United States are not in the national security interest
of the United States;
(4) the New Start Treaty and the April 7, 2010, unilateral
statement of the Russian Federation on missile defense do
not limit in any way, and shall not be interpreted as limiting,
activities that the Federal Government of the United States
currently plans or that might be required over the duration
of the New START Treaty to protect the United States pursuant
to the National Missile Defense Act of 1999, or to protect
the Armed Forces of the United States and allies of the United
States from limited ballistic missile attack, including further
planned enhancements to the Ground-based Midcourse Defense
system and all phases of the Phased Adaptive Approach to
missile defense in Europe;
(5) it was the Understanding of the Senate in its December
22, 2010, Resolution of Advice and Consent to Ratification
of the New START Treaty that, any additional New START
Treaty limitations on the deployment of missile defenses beyond
those contained in paragraph 3 of Article V, including any
limitations agreed under the auspices of the Bilateral Consultative Commission, would require an amendment to the New
START Treaty which may enter into force for the United States
only with the advice and consent of the Senate, as set forth
in Article II, section 2, clause 2 of the Constitution of the
United States; and
(6) section 303(b) of the Arms Control and Disarmament
Act (22 U.S.C. 2573(b)) requires that no action shall be taken
pursuant to this or any other Act that would obligate the
United States to reduce or limit the Armed Forces or
armaments of the United States in a militarily significant
manner, except pursuant to the treaty-making power of the
President set forth in Article II, Section 2, Clause 2 of the
Constitution..
(c) NEW START TREATY DEFINED.In this section, the term
New START Treaty means the Treaty between the United States
of America and the Russian Federation on Measures for the Further
Reduction and Limitation of Strategic Offensive Arms, signed on
April 8, 2010, and entered into force on February 5, 2011.
SEC. 233. SENSE OF CONGRESS ON THE SUBMITTAL TO CONGRESS

OF THE HOMELAND DEFENSE HEDGING POLICY AND
STRATEGY REPORT OF THE SECRETARY OF DEFENSE.
It is the sense of the Congress that

(1) the homeland defense hedging policy and strategy report
required by section 233 of the National Defense Authorization
Act for Fiscal Year 2012 (Public Law 11281; 125 Stat. 1340)
is necessary to inform Congress on options to protect the United
States homeland against the evolving ballistic missile threat,
including potential options prior to the deployment of Phase
4 of the European Phased Adaptive Approach to missile defense;
and
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126 STAT. 1686

(2) the Secretary of Defense should comply with the requirements of such section 233 by submitting the homeland defense
hedging policy and strategy report to Congress.
Subtitle DReports
SEC. 241. MISSION PACKAGES FOR THE LITTORAL COMBAT SHIP.
(a) REPORT REQUIRED.Not later than March 1, 2013, the

Secretary of the Navy shall, in consultation with the Director of
Operational Test and Evaluation, submit to the congressional
defense committees a report on the mine countermeasures warfare,
antisubmarine warfare, and surface warfare mission packages for
the Littoral Combat Ship.
(b) ELEMENTS.The report required by subsection (a) shall
set forth the following:
(1) A plan for the mission packages demonstrating that
preliminary design review for every capability increment precedes Milestone B or equivalent approval for that increment.
(2) A plan for demonstrating that the capability increment
for each mission package, combined with a Littoral Combat
Ship, on the basis of a preliminary design review and postpreliminary design review assessment, will achieve the capability specified for that increment.
(3) A plan for demonstrating the survivability and lethality
of the Littoral Combat Ship with its mission packages sufficiently early in the development phase of the system to minimize costs of concurrency.
SEC. 242. STUDY ON ELECTRONIC WARFARE CAPABILITIES OF THE
MARINE CORPS.
(a) STUDY.The Commandant of the Marine Corps shall conduct a study on the future capabilities of the Marine Corps with
respect to electronic warfare.
(b) REPORT.
of the enactment of this Act, the Commandant shall submit
to the congressional defense committees a report on the study
conducted under subsection (a).
(2) MATTERS INCLUDED.The report under paragraph (1)
shall include the following:
(A) A detailed plan for the disposition of EA6B
Prowler aircraft squadrons.
(B) A solution for the replacement of the capability
provided by such aircraft.
(C) Concepts of operation for future air-ground task
force electronic warfare capabilities of the Marine Corps.
(D) Any other issues that the Commandant determines
appropriate.
SEC. 243. CONDITIONAL REQUIREMENT FOR REPORT ON AMPHIBIOUS

ASSAULT VEHICLES FOR THE MARINE CORPS.
(a) IN GENERAL.If the ongoing Marine Corps ground combat

vehicle fleet mix study recommends the acquisition of a separate
Marine Personnel Carrier, the Secretary of the Navy and the Commandant of the Marine Corps shall jointly submit to the congressional defense committees a report that includes the following:
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126 STAT. 1870
Subtitle BSpace Activities

SEC. 911. REPORTS ON INTEGRATION OF ACQUISITION AND CAPABILITY DELIVERY SCHEDULES FOR SEGMENTS OF MAJOR
SATELLITE ACQUISITION PROGRAMS AND FUNDING FOR
SUCH PROGRAMS.
(a) IN GENERAL.Chapter 135 of title 10, United States Code,

is amended by adding at the end the following new section:
10 USC 2275.
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2275. Reports on integration of acquisition and capability

delivery schedules for segments of major satellite
acquisition programs and funding for such programs
(a) REPORTS REQUIRED.The Under Secretary of Defense for
Acquisition, Technology, and Logistics shall submit to the congressional defense committees a report on each major satellite acquisition program in accordance with subsection (d) that assesses
(1) the integration of the schedules for the acquisition
and the delivery of the capabilities of the segments for the
program; and
(2) funding for the program.
(b) ELEMENTS.Each report required by subsection (a) with
respect to a major satellite acquisition program shall include the
following:
(1) The amount of funding approved for the program and
for each segment of the program that is necessary for full
operational capability of the program.
(2) The dates by which the program and each segment
of the program is anticipated to reach initial and full operational capability.
(3) A description of the intended primary capabilities and
key performance parameters of the program.
(4) An assessment of the extent to which the schedules
for the acquisition and the delivery of the capabilities of the
segments for the program or any related program referred
to in paragraph (1) are integrated.
(5) If the Under Secretary determines pursuant to the
assessment under paragraph (4) that the program is a nonintegrated program, an identification of
(A) the impact on the mission of the program of having
the delivery of the segment capabilities of the program
more than one year apart;
(B) the measures the Under Secretary is taking or
is planning to take to improve the integration of the
acquisition and delivery schedules of the segment capabilities; and
(C) the risks and challenges that impede the ability
of the Department of Defense to fully integrate those schedules.
(c) CONSIDERATION BY MILESTONE DECISION AUTHORITY.The
Milestone Decision Authority shall include the report required by
subsection (a) with respect to a major satellite acquisition program
as part of the documentation used to approve the acquisition of
the program.
(d) SUBMITTAL OF REPORTS.(1) In the case of a major satellite
acquisition program initiated before the date of the enactment
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126 STAT. 1871
of the National Defense Authorization Act for Fiscal Year 2013,

the Under Secretary shall submit the report required by subsection
(a) with respect to the program not later than one year after
such date of enactment.
(2) In the case of a major satellite acquisition program initiated
on or after the date of the enactment of the National Defense
Authorization Act for Fiscal Year 2013, the Under Secretary shall
submit the report required by subsection (a) with respect to the
program at the time of the Milestone B approval of the program.
(e) NOTIFICATION TO CONGRESS OF NON-INTEGRATED ACQUISITION AND CAPABILITY DELIVERY SCHEDULES.If, after submitting
the report required by subsection (a) with respect to a major satellite
acquisition program, the Under Secretary determines that the program is a non-integrated program, the Under Secretary shall, not
later than 30 days after making that determination, submit to
the congressional defense committees a report
(1) notifying the committees of that determination; and
(2) identifying
(A) the impact on the mission of the program of having
the delivery of the segment capabilities of the program
more than one year apart;
(B) the measures the Under Secretary is taking or
is planning to take to improve the integration of the
acquisition and delivery schedules of the segment capabilities; and
(C) the risks and challenges that impede the ability
of the Department of Defense to fully integrate those schedules.
(f) ANNUAL UPDATES FOR NON-INTEGRATED PROGRAMS.
(1) REQUIREMENT.For each major satellite acquisition
program that the Under Secretary has determined under subsection (b)(5) or subsection (e) is a non-integrated program,
the Under Secretary shall annually submit to Congress, at
the same time the budget of the President for a fiscal year
is submitted under section 1105 of title 31, an update to the
report required by subsection (a) for such program.
(2) TERMINATION OF REQUIREMENT.The requirement to
submit an annual report update for a program under paragraph
(1) shall terminate on the date on which the Under Secretary
submits to the congressional defense committees notice that
the Under Secretary has determined that such program is
no longer a non-integrated program, or on the date that is
five years after the date on which the initial report update
required under paragraph (1) is submitted, whichever is earlier.
(3) GAO REVIEW OF CERTAIN NON-INTEGRATED PROGRAMS.If at the time of the termination of the requirement
to annually update a report for a program under paragraph
(1) the Under Secretary has not provided notice to the congressional defense committees that the Under Secretary has determined that the program is no longer a non-integrated program,
the Comptroller General shall conduct a review of such program
and submit the results of such review to the congressional
defense committees.
(g) DEFINITIONS.In this section:
(1) SEGMENTS.The term segments, with respect to a
major satellite acquisition program, refers to any satellites
acquired under the program and the ground equipment and
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Determination.
Notification.
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126 STAT. 1872
user terminals necessary to fully exploit the capabilities provided by those satellites.
(2) MAJOR SATELLITE ACQUISITION PROGRAM.The term
major satellite acquisition program means a major defense
acquisition program (as defined in section 2430 of this title)
for the acquisition of a satellite.
(3) MILESTONE B APPROVAL.The term Milestone B
approval has the meaning given that term in section 2366(e)(7)
of this title.
(4) NON-INTEGRATED PROGRAM.The term non-integrated
program means a program with respect to which the schedules
for the acquisition and the delivery of the capabilities of the
segments for the program, or a related program that is necessary for the operational capability of the program, provide
for the acquisition or the delivery of the capabilities of at
least two of the three segments for the program or related
program more than one year apart..
(b) CLERICAL AMENDMENT.The table of sections at the beginning of chapter 135 of such title is amended by adding at the
end the following new item:
10 USC
prec. 2271.
2275. Reports on integration of acquisition and capability delivery schedules for

segments of major satellite acquisition programs and funding for such
programs..
SEC. 912. COMMERCIAL SPACE LAUNCH COOPERATION.
(a) IN GENERAL.Chapter 135 of title 10, United States Code,

as amended by section 911 of this Act, is further amended by
adding at the end the following new section:
10 USC 2276.
Determination.
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2276. Commercial space launch cooperation

(a) AUTHORITY.The Secretary of Defense may take such
actions as the Secretary considers to be in the best interest of
the Federal Government to
(1) maximize the use of the capacity of the space transportation infrastructure of the Department of Defense by the private sector in the United States;
(2) maximize the effectiveness and efficiency of the space
transportation infrastructure of the Department of Defense;
(3) reduce the cost of services provided by the Department
of Defense related to space transportation infrastructure at
launch support facilities and space recovery support facilities;
(4) encourage commercial space activities by enabling
investment by covered entities in the space transportation infrastructure of the Department of Defense; and
(5) foster cooperation between the Department of Defense
and covered entities.
(b) AUTHORITY FOR CONTRACTS AND OTHER AGREEMENTS
RELATING TO SPACE TRANSPORTATION INFRASTRUCTURE.The Secretary of Defense
(1) may enter into an agreement with a covered entity
to provide the covered entity with support and services related
to the space transportation infrastructure of the Department
of Defense; and
(2) upon the request of such covered entity, may include
such support and services in the space launch and reentry
range support requirements of the Department of Defense if
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126 STAT. 1873
(A) the Secretary determines that the inclusion of

such support and services in such requirements
(i) is in the best interest of the Federal Government;
(ii) does not interfere with the requirements of
the Department of Defense; and
(iii) does not compete with the commercial space
activities of other covered entities, unless that competition is in the national security interests of the United
States; and
(B) any commercial requirement included in the agreement has full non-Federal funding before the execution
of the agreement.
(c) CONTRIBUTIONS.
(1) IN GENERAL.The Secretary of Defense may enter
into an agreement with a covered entity on a cooperative and
voluntary basis to accept contributions of funds, services, and
equipment to carry out this section.
(2) USE OF CONTRIBUTIONS.Any funds, services, or equipment accepted by the Secretary under this subsection
(A) may be used only for the objectives specified in
this section in accordance with terms of use set forth in
the agreement entered into under this subsection; and
(B) shall be managed by the Secretary in accordance
with regulations of the Department of Defense.
(3) REQUIREMENTS WITH RESPECT TO AGREEMENTS.An
agreement entered into with a covered entity under this subsection
(A) shall address the terms of use, ownership, and
disposition of the funds, services, or equipment contributed
pursuant to the agreement; and
(B) shall include a provision that the covered entity
will not recover the costs of its contribution through any
other agreement with the United States.
(d) DEFENSE COOPERATION SPACE LAUNCH ACCOUNT.
(1) ESTABLISHMENT.There is established in the Treasury
of the United States a special account to be known as the
Defense Cooperation Space Launch Account.
(2) CREDITING OF FUNDS.Funds received by the Secretary
of Defense under subsection (c) shall be credited to the Defense
Cooperation Space Launch Account.
(3) USE OF FUNDS.Funds deposited in the Defense
Cooperation Space Launch Account under paragraph (2) are
authorized to be appropriated and shall be available for obligation only to the extent provided in advance in an appropriation
Act for costs incurred by the Department of Defense in carrying
out subsection (b). Funds in the Account shall remain available
until expended.
(e) ANNUAL REPORT.Not later than January 31 of each year,
the Secretary of Defense shall submit to the congressional defense
committees a report on the funds, services, and equipment accepted
and used by the Secretary under this section during the preceding
fiscal year.
(f) REGULATIONS.The Secretary of Defense shall prescribe
regulations to carry out this section.
(g) DEFINITIONS.In this section:
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126 STAT. 1874
(1) COVERED ENTITY.The term covered entity means

a non-Federal entity that
(A) is organized under the laws of the United States
or of any jurisdiction within the United States; and
(B) is engaged in commercial space activities.
(2) LAUNCH SUPPORT FACILITIES.The term launch support facilities has the meaning given the term in section
50501(7) of title 51.
(3) SPACE RECOVERY SUPPORT FACILITIES.The term space
recovery support facilities has the meaning given the term
in section 50501(11) of title 51.
(4) SPACE TRANSPORTATION INFRASTRUCTURE.The term
space transportation infrastructure has the meaning given
that term in section 50501(12) of title 51..
(b) CLERICAL AMENDMENT.The table of sections at the beginning of such chapter, as so amended, is further amended by adding
at the end the following new item:
10 USC
prec. 2271.
2276. Commercial space launch cooperation..

SEC.
51 USC 30701
note.
President.
51 USC 30701
note.
913.
LIMITATION ON INTERNATIONAL AGREEMENTS

CERNING OUTER SPACE ACTIVITIES.
CON-
(a) CERTIFICATION REQUIRED.If the United States becomes

a signatory to a non-legally binding international agreement concerning an International Code of Conduct for Outer Space Activities
or any similar agreement, at the same time as the United States
becomes such a signatory
(1) the President shall submit to the congressional defense
committees, the Permanent Select Committee on Intelligence
of the House of Representatives, and the Select Committee
on Intelligence of the Senate a certification that such agreement
has no legally-binding effect or basis for limiting the activities
of the United States in outer space; and
(2) the Secretary of Defense, the Chairman of the Joint
Chiefs of Staff, and the Director of National Intelligence shall
jointly submit to the congressional defense committees a certification that such agreement will be equitable, enhance national
security, and have no militarily significant impact on the ability
of the United States to conduct military or intelligence activities
in space.
(b) BRIEFINGS AND NOTIFICATIONS REQUIRED.
(1) RESTATEMENT OF POLICY FORMULATION UNDER THE ARMS
CONTROL AND DISARMAMENT ACT WITH RESPECT TO OUTER

SPACE.No action shall be taken that would obligate the United
States to reduce or limit the Armed Forces or armaments

of the United States in outer space in a militarily significant
manner, except pursuant to the treaty-making power of the
President set forth in Article II, Section 2, Clause II of the
Constitution or unless authorized by the enactment of further
affirmative legislation by the Congress of the United States.
(2) BRIEFINGS.
(A) REQUIREMENT.The Secretary of Defense, the Secretary of State, and the Director of National Intelligence
shall jointly provide to the covered congressional committees regular, detailed updates on the negotiation of a nonlegally binding international agreement concerning an
International Code of Conduct for Outer Space Activities
or any similar agreement.
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VerDate Mar 15 2010
126 STAT. 1875
(B) TERMINATION OF REQUIREMENT.The requirement

to provide regular briefings under subparagraph (A) shall
terminate on the date on which the United States becomes
a signatory to an agreement referred to in subparagraph
(A), or on the date on which the President certifies to
Congress that the United States is no longer negotiating
an agreement referred to in subparagraph (A), whichever
is earlier.
(3) NOTIFICATIONS.If the United States becomes a signatory to a non-legally binding international agreement concerning an International Code of Conduct for Outer Space
Activities or any similar agreement, not less than 60 days
prior to any action that will obligate the United States to
reduce or limit the Armed Forces or armaments or activities
of the United States in outer space, the head of each Department or agency of the Federal Government that is affected
by such action shall submit to Congress notice of such action
and the effect of such action on such Department or agency.
(4) DEFINITION.In this subsection, the term covered
congressional committees means
(A) the Committee on Armed Services, the Committee
on Foreign Affairs, and the Permanent Select Committee
on Intelligence of the House of Representatives; and
(B) the Committee on Armed Services, the Committee
on Foreign Relations, and the Select Committee on Intelligence of the Senate.
(c) REPORT ON FOREIGN COUNTER-SPACE PROGRAMS.
(1) REPORT REQUIRED.Chapter 135 of title 10, United
States Code, as amended by section 912 of this Act, is further
amended by adding at the end the following new section:
President.
Certification.
2277. Report on foreign counter-space programs

(a) REPORT REQUIRED.Not later than January 1 of each
year, the Secretary of Defense and the Director of National Intelligence shall jointly submit to Congress a report on the counterspace programs of foreign countries.
(b) CONTENTS.Each report required under subsection (a)
shall include
(1) an explanation of whether any foreign country has
a counter-space program that could be a threat to the national
security or commercial space systems of the United States;
and
(2) the name of each country with a counter-space program
described in paragraph (1).
(c) FORM.
(1) IN GENERAL.Except as provided in paragraphs (2)
and (3), each report required under subsection (a) shall be
submitted in unclassified form.
(2) CLASSIFIED ANNEX.The Secretary of Defense and the
Director of National Intelligence may submit to the covered
congressional committees a classified annex to a report required
under subsection (a) containing any classified information
required to be submitted for such report.
(3) FOREIGN COUNTRY NAMES.
(A) UNCLASSIFIED FORM.Subject to subparagraph
(B), each report required under subsection (a) shall include
10 USC 2277.
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Deadline.
PUBL239
126 STAT. 1876
Determination.
10 USC
prec. 2271.
the information required under subsection (b)(2) in

unclassified form.
(B) NATIONAL SECURITY WAIVER.The Secretary of
Defense and the Director of National Intelligence may
waive the requirement under subparagraph (A) if the Secretary and the Director of National Intelligence jointly
determine it is in the interests of national security to
waive such requirement and submits to Congress an explanation of why the Secretary and the Director waived such
requirement.
(d) COVERED CONGRESSIONAL COMMITTEES DEFINED.In this
section, the term covered congressional committees means the
Committee on Armed Services and the Permanent Select Committee
on Intelligence of the House of Representatives and the Committee
on Armed Services and the Select Committee on Intelligence of
the Senate..
(2) CLERICAL AMENDMENT.The table of sections at the
beginning of chapter 135 of title 10, United States Code, as
so amended, is further amended by adding at the end the
following new item:
2277. Report on foreign counter-space programs..
SEC. 914. OPERATIONALLY RESPONSIVE SPACE PROGRAM OFFICE.
Establishment.
Establishment.
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(a) IN GENERAL.Subsection (a) of section 2273a of title 10,

United States Code, is amended to read as follows:
(a) IN GENERAL.There is within the Air Force Space and
Missile Systems Center of the Department of Defense a joint program office known as the Operationally Responsive Space Program
Office (in this section referred to as the Office). The facilities
of the Office may not be co-located with the headquarters facilities
of the Air Force Space and Missile Systems Center..
(b) HEAD OF OFFICE.Subsection (b) of such section is amended
by striking shall be and all that follows and inserting shall
be the designee of the Department of Defense Executive Agent
for Space. The head of the Office shall report to the Commander
of the Air Force Space and Missile Systems Center..
(c) MISSION.Subsection (c)(1) of such section is amended by
striking spacelift and inserting launch.
(d) SENIOR ACQUISITION EXECUTIVE.Paragraph (1) of subsection (e) of such section is amended to read as follows:
(1) The Program Executive Officer for Space shall be the
Acquisition Executive of the Office and shall provide streamlined acquisition authorities for projects of the Office..
(e) EXECUTIVE COMMITTEE.Such section is further amended
by adding at the end the following new subsection:
(g) EXECUTIVE COMMITTEE.(1) The Secretary of Defense shall
establish for the Office an Executive Committee (to be known as
the Operationally Responsive Space Executive Committee) to provide coordination, oversight, and approval of projects of the Office.
(2) The Executive Committee shall consist of the officials (and
their duties) as follows:
(A) The Department of Defense Executive Agent for Space,
who shall serve as Chair of the Executive Committee and
provide oversight, prioritization, coordination, and resources
for the Office.
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126 STAT. 1877
(B) The Under Secretary of Defense for Acquisition, Technology, and Logistics, who shall provide coordination and oversight of the Office and recommend funding sources for programs
of the Office that exceed the approved program baseline.
(C) The Commander of the United States Strategic Command, who shall validate requirements for systems to be
acquired by the Office and participate in approval of any
acquisition program initiated by the Office.
(D) The Commander of the Air Force Space Command,
the Commander of the Army Space and Missile Defense Command, and the Commander of the Space and Naval Warfare
Systems Command, who shall jointly organize, train, and equip
forces to support the acquisition programs of the Office.
(E) Such other officials (and their duties) as the Secretary
of Defense considers appropriate..
SEC. 915. REPORT ON OVERHEAD PERSISTENT INFRARED TECHNOLOGY.
(a) REPORT.Not later than 180 days after the date of the
enactment of this Act, the Secretary of Defense, in consultation
with the Director of National Intelligence, shall submit to the
congressional defense committees, the Permanent Select Committee
on Intelligence of the House of Representatives, and the Select
Committee on Intelligence of the Senate a report on overhead
persistent infrared technology that includes
(1) an identification of the comprehensive overhead persistent infrared technology requirements of the Department
of Defense and the intelligence community;
(2) a description of the strategy, plan, and budget for the
space layer, with supporting ground architecture, including key
decision points for the current and next generation overhead
persistent infrared technology with respect to missile warning,
missile defense, battlespace awareness, and technical intelligence;
(3) an assessment of whether there are further opportunities for the Department of Defense and the intelligence community to capitalize on increased data sharing, fusion, interoperability, and exploitation;
(4) recommendations on how to better coordinate the efforts
by the Department and the intelligence community to exploit
overhead persistent infrared sensor data; and
(5) any other relevant information that the Secretary considers necessary.
(b) COMPTROLLER GENERAL ASSESSMENT.Not later than 90
days after the date on which the Secretary of Defense submits
the report required under subsection (a), the Comptroller General
of the United States shall submit to the congressional defense
committees an assessment of the report required under subsection
(a), including
(1) an assessment of whether such report is comprehensive,
fully supported, and sufficiently detailed; and
(2) an identification of any shortcomings, limitations, or
other reportable matters that affect the quality or findings
of the report required under subsection (a).
(c) INTELLIGENCE COMMUNITY DEFINED.In this section, the
term intelligence community has the meaning given that term
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126 STAT. 1878
in section 3(4) of the National Security Act of 1947 (50 U.S.C.

401a(4)).
SEC. 916. ASSESSMENT OF FOREIGN COMPONENTS AND THE SPACE
LAUNCH CAPABILITY OF THE UNITED STATES.
(a) ASSESSMENT.The Under Secretary of Defense for Acquisition, Technology, and Logistics shall conduct an independent assessment of the national security implications of continuing to use
foreign component and propulsion systems for the launch vehicles
under the evolved expendable launch vehicle program.
(b) REPORT.Not later than 180 days after the date of the
enactment of this Act, the Under Secretary of Defense for Acquisition, Technology, and Logistics shall submit to the congressional
defense committees a report on the assessment conducted under
subsection (a).
SEC. 917. REPORT ON COUNTER SPACE TECHNOLOGY.
(a) REPORT.Not later than one year after the date of the
enactment of this Act, and annually thereafter for two years, the
Secretary of Defense shall submit to the congressional defense
committees, the Committee on Foreign Affairs of the House of
Representatives, and the Committee on Foreign Relations of the
Senate a report based on all available information (including the
Counter Space Technology List of the Department of State)
describing key space technologies that could be used, or are being
sought, by a foreign country with a counter space or ballistic missile
program, and should be subject to export controls by the United
States or an ally of the United States, as appropriate.
(b) FORM.Each report required under subsection (a) shall
be submitted in unclassified form, but may include a classified
annex.
Subtitle CIntelligence-Related Activities

SEC. 921. AUTHORITY TO PROVIDE GEOSPATIAL INTELLIGENCE SUPPORT TO CERTAIN SECURITY ALLIANCES AND REGIONAL
ORGANIZATIONS.
10 USC
prec. 441.
(a) AUTHORIZATION.Section 443(a) of title 10, United States

Code, is amended by striking foreign countries and inserting
foreign countries, regional organizations with defense or security
components, and security alliances of which the United States is
a member.
(b) CLERICAL AMENDMENTS.
(1) SECTION HEADING.The heading of section 443 of title
10, United States Code, is amended by striking foreign countries and inserting foreign countries, regional organizations, and security alliances.
(2) TABLE OF SECTIONS.The table of sections at the beginning of chapter 22 of title 10, United States Code, is amended
by striking the item relating to section 443 and inserting the
following new item:
443. Imagery intelligence and geospatial information: support for foreign countries,
regional organizations, and security alliances..
(c) REPORTS.
(1) IN GENERAL.Not later than January 15 during each
of 2014 and 2015, the Director of the National Geospatial-
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126 STAT. 1880

including through the use of product fly-offs using standardized,
Government-provided common data sets that allow for equitable
comparisons of capabilities;
(4) an analysis of the current technological path to ensure
such path incorporates current best practices from industry
and is in concert with the emerging needs and requirements
of the Joint Information Environment;
(5) an assessment of such program to ensure appropriate
investments in human systems integration are being made
to ensure interface usability;
(6) an assessment of such program to ensure enterprise
knowledge management and training requirements are
commensurate with the anticipated force structure of the Army
for the decade following the date of the enactment of this
Act; and
(7) recommendations for any changes that may be needed
as a result of the review.
SEC. 924. ELECTRO-OPTICAL IMAGERY.
(a) IDENTIFICATION OF DEPARTMENT OF DEFENSE ELECTROSATELLITE IMAGERY REQUIREMENTS.

(1) REPORT.Not later than April 1, 2013, the Chairman
of the Joint Requirements Oversight Council shall submit to
the Director of the Congressional Budget Office a report setting
forth a comprehensive description of Department of Defense
peacetime and wartime requirements for electro-optical satellite
imagery.
(2) SCOPE OF REQUIREMENTS.The requirements under
paragraph (1) shall
(A) be expressed in such terms as are necessary, which
may include daily regional and global area coverage and
number of point targets, resolution, revisit rates, meantime to access, latency, redundancy, survivability, and
diversity; and
(B) take into consideration all types of imagery and
collection means available.
(b) ASSESSMENT OF IDENTIFIED REQUIREMENTS.
(1) IN GENERAL.Not later than September 15, 2013, the
Director of the Congressional Budget Office shall submit to
the appropriate committees of Congress a report setting forth
an assessment by the Director of the report required by subsection (a).
(2) ELEMENTS.The assessment required by paragraph (1)
shall include an assessment of the following:
(A) The extent to which the requirements of the
Department for electro-optical imagery from space can be
satisfied by commercial companies using either
(i) current designs; or
(ii) enhanced designs that could be developed at
low risk.
(B) The estimated cost and schedule of satisfying such
requirements using commercial companies.
(3) CONSULTATION AND OTHER RESOURCES.In preparing
the assessment required by paragraph (1), the Director shall
(A) consult widely with officials of the Government,
private industry, and academia; and
OPTICAL
Deadline.
Reports.
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126 STAT. 1881
(B) make maximum use of existing studies and modeling and simulations.
(4) ACCESS TO INFORMATION.The Secretary of Defense
shall provide the appropriately cleared staff of the Director
of the Congressional Budget Office with such access to information and programs applicable to the assessment required by
paragraph (1) as the Director of the Congressional Budget
Office shall require for the preparation of the assessment.
(c) APPROPRIATE COMMITTEES OF CONGRESS DEFINED.In this
section, the term appropriate committees of Congress means
(1) the Committees on Armed Services and Appropriations
and the Select Committee on Intelligence of the Senate; and
(2) the Committees on Armed Services and Appropriations
and the Permanent Select Committee on Intelligence of the
House of Representatives.
SEC. 925. DEFENSE CLANDESTINE SERVICE.
(a) PROHIBITION ON USE OF

SONNEL.
(1) PROHIBITION.Subject
FUNDS
FOR
ADDITIONAL PER-
to paragraph (2), none of the

funds authorized to be appropriated by this Act may be obligated or expended for
(A) civilian personnel in the Department of Defense
conducting or supporting human intelligence in excess of
the number of such civilian personnel as of April 20, 2012;
or
(B) positions in the Department of Defense served by
members of the Armed Forces conducting or supporting
human intelligence within the Department of Defense in
excess of the number of such positions as of April 20,
2012.
(2) REDUCTION OF CIVILIAN PERSONNEL.
(A) REDUCTION.Subject to subparagraph (B), if on
the date of the enactment of this Act the number of civilian
personnel in the Department of Defense conducting or supporting human intelligence exceeds the number of such
personnel as of April 20, 2012, the Secretary of Defense
shall, not later than 30 days after the date of the enactment
of this Act, take appropriate action to promptly reduce,
consistent with reduction-in-force procedures, the total
number of such civilian personnel to the number of such
civilian personnel as of April 20, 2012.
(B) EXCEPTION.For each civilian personnel in the
Department of Defense conducting or supporting human
intelligence in excess of the number of such civilian personnel as of April 20, 2012, that the Secretary considers
necessary to maintain after the date of the enactment
of this Act during all or part of fiscal year 2013, the
Secretary shall submit to the appropriate committees of
Congress a comprehensive justification for maintaining
such civilian personnel, including the specific role, mission,
and responsibilities of such civilian personnel and whether
such civilian personnel was employed in another capacity
in the Department of Defense immediately prior to beginning the conduct or support of human intelligence.
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126 STAT. 1944
SEC. 1067. REPORT ON PLANNED EFFICIENCY INITIATIVES AT SPACE

AND NAVAL WARFARE SYSTEMS COMMAND.
Not later than 90 days after the date of the enactment of

this Act, the Secretary of the Navy shall submit to the congressional
defense committees a report on plans to implement efficiency initiatives to reduce overhead costs at all echelons of the Space and
Naval Warfare Systems Command (SPAWAR), including a detailed
description of the long-term impacts on current and planned future
mission requirements.
SEC. 1068. REPORT ON MILITARY RESOURCES NECESSARY TO EXECUTE UNITED STATES FORCE POSTURE STRATEGY IN THE
ASIA PACIFIC REGION.
(a) REVIEW REQUIRED.

(1) IN GENERAL.The Secretary of Defense shall, in consultation with the Chairman of the Joint Chiefs of Staff, conduct
a comprehensive review of the national defense strategy, force
structure, force modernization plans, infrastructure, budget
plan, and other elements of the defense program and policies
of the United States with regard to the Asia Pacific region
to determine the resources, equipment, and transportation
required to meet the strategic and operational plans of the
United States.
(2) ELEMENTS.The review required under paragraph (1)
shall include the following elements:
(A) The force structure, force modernization plans,
infrastructure, budget plan, and other elements of the
defense program of the United States associated with the
Asia Pacific region that would be required to execute
successfully the full range of missions called for in the
national defense strategy.
(B) An estimate of the timing for initial and final
operational capability for each unit based in, realigned
within, or identified for support to the Asia Pacific region.
(C) An assessment of the strategic and tactical sea,
ground, and air transportation required for the forces
assigned to the Asia Pacific region to meet strategic and
operational plans.
(D) The specific capabilities, including the general
number and type of specific military platforms, their
permanent station, and planned forward operating locations needed to achieve the strategic and warfighting objectives identified in the review.
(E) The forward presence, phased deployments, prepositioning, and other anticipatory deployments of manpower or military equipment necessary for conflict deterrence and adequate military response to anticipated conflicts.
(F) The budget plan that would be required to provide
sufficient resources to execute successfully the full range
of missions and phased operations in the Asia Pacific region
at a low-to-moderate level of risk and any additional
resources (beyond those programmed in the current futureyears defense program) required to achieve such a level
of risk.
(G) Budgetary recommendations that are not constrained to comply with and are fully independent of the
Consultation.
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126 STAT. 2018
attempts to violate, conspires to violate, or causes a violation of

this subtitle or regulations prescribed under this subtitle to the
same extent that such penalties apply to a person that commits
an unlawful act described in section 206(a) of that Act.
(c) APPLICATION OF CERTAIN PROVISIONS OF IRAN SANCTIONS
ACT OF 1996.The following provisions of the Iran Sanctions Act
of 1996 (Public Law 104172; 50 U.S.C. 1701 note) shall apply
with respect to the imposition of sanctions under sections 1244(d),
1245(a), and 1246(a) to the same extent that such provisions apply
with respect to the imposition of sanctions under section 5(a) of
the Iran Sanctions Act of 1996, and, as appropriate, instead of
sections 1244(i), 1245(g), and 1246(e) of this Act:
(1) Paragraphs (1)(A), (2)(A), and (2)(B)(i) of section 4(c).
(2) Subsections (c), (d), and (f) of section 5.
(3) Section 8.
(4) Section 11.
(5) Section 12.
(6) Section 13(b).
22 USC 8810.
SEC. 1254. APPLICABILITY TO CERTAIN NATURAL GAS PROJECTS.
Nothing in this subtitle or the amendments made by this subtitle shall apply with respect to any activity relating to a project
described in subsection (a) of section 603 of the Iran Threat Reduction and Syria Human Rights Act of 2012 (22 U.S.C. 8783) to
which the exception under that section applies at the time of the
activity.
22 USC 8811.
SEC. 1255. RULE OF CONSTRUCTION.
Nothing in this subtitle or the amendments made by this subtitle shall be construed to limit sanctions imposed with respect
to Iran under any other provision of law or to limit the authority
of the President to impose additional sanctions with respect to
Iran.
Subtitle ESatellites and Related Items

SEC. 1261. REMOVAL OF SATELLITES AND RELATED ITEMS FROM THE
UNITED STATES MUNITIONS LIST.
President.
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(a) REPEAL.
(1) IN GENERAL.Section 1513 of the Strom Thurmond
National Defense Authorization Act for Fiscal Year 1999 (Public
Law 105261; 112 Stat. 2174; 22 U.S.C. 2778 note) is amended
by striking subsection (a).
(2) CONFORMING AMENDMENT.Subsection (c) of such section is amended by striking (1) Subsection (a) and all that
follows through (2) The amendments and inserting The
amendments.
(b) ADDITIONAL DETERMINATION AND REPORT.Accompanying
but separate from the submission to Congress of the first notification after the date of the enactment of this Act under section
38(f) of the Arms Export Control Act (22 U.S.C. 2778(f)) relating
to the removal of satellites and related items from the United
States Munitions List, the President shall also submit to Congress
(1) a determination by the President that the removal
of such satellites and items from the United States Munitions
List is in the national security interests of the United States;
and
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126 STAT. 2019
(2) a report identifying and analyzing any differences

between
(A) the recommendations and draft regulations for
controlling the export, re-export, and transfer of such satellites and related items that were submitted in the report
to Congress required by section 1248 of the National
Defense Authorization Act for Fiscal Year 2010 (Public
Law 11184; 123 Stat. 2546); and
(B) the final regulations under which the export, reexport, and transfer of such satellites and related items
would continue to be controlled.
(c) PROHIBITION.
(1) IN GENERAL.Subject to paragraph (3), no satellites
or related items that are made subject to the Export Administration Regulations (15 CFR part 730 et seq.) as a result
of the enactment of subsection (a) of this section, whether
or not enumerated on the Commerce Control List
(A) may be exported, re-exported, or transferred,
directly or indirectly, to
(i) any government of a country described in paragraph (2); or
(ii) any entity or person in or acting for or on
behalf of such government, entity, or person; or
(B) may be launched in a country described in paragraph (2) or as part of a launch vehicle owned, operated,
or manufactured by the government of such country or
any entity or person in or acting for or on behalf of such
government, entity, or person.
(2) COUNTRIES DESCRIBED.The countries referred to in
paragraph (1) are the following:
(A) The Peoples Republic of China.
(B) North Korea.
(C) Any country that is a state sponsor of terrorism.
(3) WAIVER.The President may waive the prohibition in
paragraph (1) on a case-by-case basis if not later than 30
days before doing so the President
(A) determines that it is in the national interest of
the United States to do so; and
(B) notifies the appropriate congressional committees
of such determination.
(d) PRESUMPTION OF DENIAL.Any license or other authorization to export satellites and related items to a country with respect
to which the United States maintains a comprehensive arms
embargo shall be subject to a presumption of denial.
(e) REPORT.
(1) IN GENERAL.Not later than one year after the date
of the enactment of this Act, and annually thereafter, the
Director of National Intelligence, in consultation with the Secretary of State, shall submit to the appropriate congressional
committees a report on efforts of state sponsors of terrorism,
other foreign countries, or entities to illicitly acquire satellites
and related items.
submitted in unclassified form, but may contain a classified
annex.
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President.
Deadline.
Determination.
Notification.
Consultation.
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126 STAT. 2020

22 USC 2778
note.
SEC. 1262. REPORT ON LICENSES AND OTHER AUTHORIZATIONS TO

EXPORT CERTAIN SATELLITES AND RELATED ITEMS.
President.
(a) IN GENERAL.Not later than 60 days after the end of

each calendar year through 2020, the President shall submit to
the committees of Congress specified in subsection (b) a report
summarizing all licenses and other authorizations to export satellites and related items that are subject to the Export Administration Regulations (15 CFR part 730 et seq.) as a result of the
enactment of section 1261(a).
(b) COMMITTEES OF CONGRESS SPECIFIED.The committees of
Congress specified in this subsection are
(1) the Committee on Foreign Relations, the Committee
on Banking, Housing, and Urban Affairs, and the Select Committee on Intelligence of the Senate; and
(2) the Committee on Foreign Affairs and the Permanent
Select Committee on Intelligence of the House of Representatives.
22 USC 2778
note.
SEC. 1263. REPORT ON COUNTRY EXEMPTIONS FOR LICENSING OF

EXPORTS OF CERTAIN SATELLITES AND RELATED ITEMS.
Consultation.
(a) IN GENERAL.Not later than 120 days after the date of

the enactment of this Act, the Secretary of Commerce, in consultation with the Attorney General, the Secretary of Homeland Security,
and the heads of other Federal departments and agencies as appropriate, shall submit to the appropriate congressional committees
a report that contains an assessment of the extent to which the
terms and conditions of exemptions for foreign countries to the
licensing requirements and other authorizations to export satellites
and related items that are subject to the Export Administration
Regulations (15 CFR part 730 et seq.) as a result of the enactment
of section 1261(a) contain strong safeguards.
(b) MATTERS TO BE INCLUDED.The report required by subsection (a) shall include a description of the extent to which the
terms and conditions of exemptions described in subsection (a),
including other relevant laws, regulations, and practices, support
law enforcement efforts to detect, prevent, and prosecute criminal,
administrative, and other violations of any provision of the Export
Administration Regulations (15 CFR part 730 et seq.), including
efforts on the part of state sponsors of terrorism, organizations
determined by the Secretary of State to have provided support
for international terrorism, or other foreign countries, to acquire
illicitly satellites and related items from the United States.
22 USC 2778
note.
SEC. 1264. END-USE MONITORING OF CERTAIN SATELLITES AND

RELATED ITEMS.
President.
(a) IN GENERAL.In order to ensure accountability with respect

to the export of satellites and related items that become subject
to the Export Administration Regulations (15 CFR part 730 et
seq.) as a result of the enactment of section 1261(a), the President
shall provide for the end-use monitoring of such satellites and
related items.
(b) REPORT.Not later than 120 days after the date of the
enactment of this Act, the Secretary of Commerce, in consultation
with the heads of other Federal departments and agencies as appropriate, shall submit to Congress a report describing the actions
taken to implement this section, including identification of resource
Consultation.
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PUBL239
126 STAT. 2021
shortfalls or other constraints on effective end-use monitoring of

satellites and related items described in subsection (a).
SEC. 1265. INTERAGENCY REVIEW OF MODIFICATIONS TO CATEGORY
XV OF THE UNITED STATES MUNITIONS LIST.
22 USC 2778
note.
(a) IN GENERAL.Subject to section 38(f) of the Arms Export

Control Act (22 U.S.C. 2778(f)), the President shall ensure that
the Secretary of State, the Secretary of Defense, the Secretary
of Commerce and, as appropriate, the Director of National Intelligence and the heads of other appropriate Federal departments
and agencies, will review any removal or addition of an item to
Category XV of the United States Munitions List (relating to spacecraft systems and associated equipment).
(b) EFFECTIVE DATE.The requirement of subsection (a) shall
apply with respect to any item described in subsection (a) that
is proposed to be removed or added to Category XV of the United
States Munitions List on or after the date of the enactment of
this Act.
President.
SEC. 1266. RULES OF CONSTRUCTION.
22 USC 2778
note.
Applicability.
(a) IN GENERAL.Subtitle B of title XV of the Strom Thurmond

National Defense Authorization Act for Fiscal Year 1999 (Public
Law 105261; 112 Stat. 2173; 22 U.S.C. 2778 note) shall continue
to apply to satellites and related items that are subject to the
Export Administration Regulations (15 CFR part 730 et seq.) as
a result of the enactment of section 1261(a).
(b) ADDITIONAL RULE.Nothing in this subtitle or any amendment made by this subtitle shall be construed as removing or
limiting the authorities of the President under subsection (a) or
(b) of section 1514 of the Strom Thurmond National Defense
Authorization Act for Fiscal Year 1999 (Public Law 105261; 112
Stat. 2175; 22 U.S.C. 2778 note) with respect to defense articles
and defense services that remain subject to the jurisdiction of
the International Traffic in Arms Regulations.
SEC. 1267. DEFINITIONS.
In this subtitle:
(1) APPROPRIATE CONGRESSIONAL COMMITTEES.The term
appropriate congressional committees means
(A) the Committee on Foreign Relations, the Committee on Banking, Housing, and Urban Affairs, the Committee on Armed Services, and the Select Committee on
Intelligence of the Senate; and
(B) the Committee on Foreign Affairs, the Committee
on Armed Services, and the Permanent Select Committee
on Intelligence of the House of Representatives.
(2) STATE SPONSOR OF TERRORISM.The term state sponsor
of terrorism means any country the government of which the
Secretary of State has determined has repeatedly provided
support for international terrorism pursuant to
(A) section 6(j) of the Export Administration Act of
1979 (50 U.S.C. App. 2405) (as continued in effect under
the International Emergency Economic Powers Act);
(B) section 620A of the Foreign Assistance Act of 1961
(22 U.S.C. 2371);
(C) section 40 of the Arms Export Control Act (22
U.S.C. 2780); or
(D) any other provision of law.
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Applicability.
22 USC 2778
note.
PUBL239
126 STAT. 2022

(3) UNITED STATES MUNITIONS LIST.The term United
States Munitions List means the list referred to in section
38(a)(1) of the Arms Export Control Act (22 U.S.C. 2778(a)(1)).
Subtitle FOther Matters
SEC. 1271. ADDITIONAL ELEMENTS IN ANNUAL REPORT ON MILITARY

AND SECURITY DEVELOPMENTS INVOLVING THE PEOPLES REPUBLIC OF CHINA.
Section 1202(b) of the National Defense Authorization Act for

Fiscal Year 2000 (Public Law 10665; 10 U.S.C. 113 note) is
amended
(1) by amending paragraph (9) to read as follows:
(9) Developments in Chinas asymmetric capabilities,
including its strategy and efforts to develop and deploy
cyberwarfare and electronic warfare capabilities, details on the
number of malicious cyber incidents originating from China
against Department of Defense infrastructure, and associated
activities originating or suspected of originating from China.;
(2) by redesignating paragraphs (10), (11),and (12) as paragraphs (15), (16), and (17) respectively;
(3) by inserting after paragraph (9) the following new paragraphs:
(10) The strategy and capabilities of Chinese space and
counterspace programs, including trends, global and regional
activities, the involvement of military and civilian organizations, including state-owned enterprises, academic institutions,
and commercial entities, and efforts to develop, acquire, or
gain access to advanced technologies that would enhance Chinese military capabilities.
(11) Developments in Chinas nuclear program, including
the size and state of Chinas stockpile, its nuclear strategy
and associated doctrines, its civil and military production capacities, and projections of its future arsenals.
(12) A description of Chinas anti-access and area denial
capabilities.
(13) A description of Chinas command, control, communications, computers, intelligence, surveillance, and reconnaissance modernization program and its applications for Chinas
precision guided weapons.
(14) A description of the roles and activities of the Peoples
Liberation Army Navy and those of Chinas paramilitary and
maritime law enforcement vessels, including their response to
United States naval activities.; and
(4) by adding after paragraph (17), as redesignated by
paragraph (2) of this section, the following new paragraphs:
(18) A description of Chinese military-to-military relationships with other countries, including the size and activity of
military attache offices around the world and military education
programs conducted in China for other countries or in other
countries for the Chinese.
(19) A description of any significant sale or transfer of
military hardware, expertise, and technology to or from the
Peoples Republic of China, including a forecast of possible
future sales and transfers, a description of the implications
of those sales and transfers for the security of the United
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PUBL239
126 STAT. 2454
Public Law 112273

112th Congress
An Act
Jan. 14, 2013
[H.R. 6586]
Space
Exploration
Sustainability
Act.
51 USC 10101
note.
To extend the application of certain space launch liability provisions through 2014.
Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the Space Exploration Sustainability

Act.
SEC. 2. ASSURANCE OF CORE CAPABILITIES.
Section 203 of the National Aeronautics and Space Administration Authorization Act of 2010 (42 U.S.C. 18313) is amended by
adding at the end the following:
(c) SENSE OF CONGRESS REGARDING HUMAN SPACE FLIGHT
CAPABILITY ASSURANCE.It is the sense of Congress that the
Administrator shall proceed with the utilization of the ISS, technology development, and follow-on transportation systems
(including the Space Launch System, multi-purpose crew vehicle,
and commercial crew and cargo transportation capabilities) under
titles III and IV of this Act in a manner that ensures
(1) that these capabilities remain inherently complementary and interrelated;
(2) a balance of the development, sustainment, and use
of each of these capabilities, which are of critical importance
to the viability and sustainability of the U.S. space program;
and
(3) that resources required to support the timely and
sustainable development of these capabilities authorized in
either title III or title IV of this Act are not derived from
a reduction in resources for the capabilities authorized in the
other title.
(d) LIMITATION.Nothing in subsection (c) shall apply to or
affect any capability authorized by any other title of this Act.
SEC. 3. EXTENSION OF CERTAIN SPACE LAUNCH LIABILITY PROVISIONS.
Section 50915(f) of title 51, United States Code, is amended

by striking December 31, 2012 and inserting December 31, 2013.
dkrause on DSKHT7XVN1PROD with PUBLIC LAWS
SEC. 4. EXEMPTION FROM INKSNA.
Section 7(1)(B) of the Iran, North Korea, and Syria Nonproliferation Act (50 U.S.C. 1701 note) is amended
(1) by striking , or for the purchase of goods or services
relating to human space flight, that are; and
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PUBL273
126 STAT. 2455
(2) by striking prior to July 1, 2016 and inserting prior

to December 31, 2020.
dkrause on DSKHT7XVN1PROD with PUBLIC LAWS
Approved January 14, 2013.
LEGISLATIVE HISTORYH.R. 6586:

CONGRESSIONAL RECORD:
Vol. 158 (2012): Nov. 13, considered and passed House.
Dec. 31, considered and passed Senate, amended.
Vol. 158 (2013): Jan. 2, House concurred in Senate amendment.
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PUBL273
III
113TH CONGRESS
1ST SESSION
S. RES. 24
Commemorating the 10-year anniversary of the loss of the Space Shuttle

Columbia.
IN THE SENATE OF THE UNITED STATES

JANUARY 31, 2013
Mr. CORNYN (for himself, Mr. NELSON, Mr. THUNE, Mr. ROCKEFELLER, Mr.
ISAKSON, Mr. WARNER, Mr. HELLER, Mr. DURBIN, Mr. COBURN, Ms.
MIKULSKI, Mr. RUBIO, Mrs. BOXER, Mr. ENZI, Mr. BROWN, Mr. PRYOR,
Mr. ALEXANDER, Mrs. FEINSTEIN, Mr. JOHANNS, Mr. BEGICH, Mr. VITTER, Mrs. SHAHEEN, Mr. MORAN, Mr. HATCH, Mr. WICKER, and Mrs.
GILLIBRAND) submitted the following resolution; which was considered
and agreed to
RESOLUTION
Commemorating the 10-year anniversary of the loss of the
Space Shuttle Columbia.
Whereas a sense of adventure is innate to the human spirit;
Whereas the urge to explore continues to motivate the United
States as a nation;
sroberts on DSK5SPTVN1PROD with BILLS
Whereas the global leadership of the United States is determined by the resolve of the people of the United States;
Whereas the drive to innovate and explore has led the people
of the National Aeronautics and Space Administration
and related industry and education leaders to make im-
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SR24
2
portant discoveries with a broad impact on humanity, in
spite of inherent risk;
Whereas the men and women of the space program of the
United States have captured the curiosity of the people
of the United States, inspiring generations of scientists,
engineers, and pioneers, and delivering technological advances and innovation, scientific research, and international partnerships to the benefit of nearly all sectors
of the economy of the United States;
Whereas, on February 1, 2003, the United States joined the
world in mourning the loss of 7 astronauts who perished
aboard the Space Shuttle Columbia as it re-entered the
atmosphere of the Earth;
Whereas United States Air Force Colonel Rick D. Husband,
Mission Commander; United States Navy Commander
William Willie C. McCool, Pilot; United States Air
Force Lieutenant Colonel Michael P. Anderson, Payload
Commander/Mission Specialist; United States Navy Captain David M. Brown, Mission Specialist; United States
Navy Commander Laurel B. Clark, Mission Specialist;
Dr. Kalpana Chawla, Mission Specialist; and Israeli Air
Force Colonel Ilan Ramon, Payload Specialist were killed
in the line of duty and in pursuit of discovery during the
STS107 mission;
Whereas the people of the United States are driven to continue the exploration and pursuit of discovery with as
much passion and determination as these brave men and
women;
Whereas an innate curiosity about what lies beyond our world
drives us to expand the limits of human exploration and
SRES 24 ATS
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3
discovery in space, in the furtherance of the leadership
and strategic interests of the United States;
Whereas exploring the heavens and the celestial bodies of the
solar system is not without great risk and peril;
Whereas the loss of the 7 brave souls aboard the Space Shuttle Columbia and others who have sacrificed their lives in
pursuit of human space exploration shall forever serve as
a solemn reminder of the firm commitment of the United
States to devote the capacity and resources necessary to
improve safety, minimize risk, and do everything possible
to protect the next generation of explorers willing to risk
themselves in the service of mankind;
Whereas those involved in the Space Shuttle program of the
United States have sought to apply the lessons learned
from the Space Shuttle Columbia accident to future
human spaceflight by the United States, which included
22 additional program missions and shepherding the
Space Shuttle program to its safe and successful conclusion;
Whereas the lessons learned from the Space Shuttle Columbia accident should be applied to current policy of the
space program of the United States; and
Whereas the people of the United States will not forget the
sacrifice of those 7 determined explorers aboard the
Space Shuttle Columbia, as well as others who perished
in the exploration of the unknown: Now, therefore, be it
Resolved, That the Senate
(1) remembers the 7 astronauts who tragically
lost their lives aboard the Space Shuttle Columbia as
SRES 24 ATS
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4
1
it re-entered the atmosphere of the Earth 10 years
ago on February 1, 2003;
3
4
(2) expresses its condolences to the friends and

families of the astronauts who died that day;
(3) commends those who have honored the
memory of the Space Shuttle Columbia over the past
decade, including the employees of Federal, State,
and local agencies, as well as regular citizens and
volunteers, who assisted in the debris recovery and
10
accident investigation process; and
11
(4) reaffirms the commitment of the people and
12
the Government of the United States to provide the
13
leadership and resources necessary to ensure robust
14
and safe human spaceflight capability in low Earth
15
orbit and beyond in the 21st century, to make cer-
16
tain that the sacrifice of those heroes shall not have
17
been in vain.
SRES 24 ATS
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Federal Register / Vol. 78, No. 16 / Thursday, January 24, 2013 / Rules and Regulations
day of the first pay period beginning on

or after the effective date indicated in
the applicable final rule published in
the Federal Register.
*
*
*
*
*
[FR Doc. 201301399 Filed 12313; 8:45 am]
BILLING CODE 632539P
NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION
14 CFR Part 1203
[Document No. NASA20120006]
RIN 2700AD61
NASA Information Security Protection

National Aeronautics and
Space Administration.
ACTION: Direct final rule.
AGENCY:
This direct final rule makes

nonsubstantive changes to align with
and implement the provisions of
Executive Order (E.O.) 13526, Classified
National Security Information, and
appropriately to correspond with
NASAs internal requirements, NPR
1600.2, Classified National Security
Information, that establishes the
Agencys requirements for the proper
implementation and management of a
uniform system for classifying,
accounting, safeguarding, and
declassifying national security
information generated by or in the
possession of NASA. The revisions to
these rules are part of NASAs
retrospective plan under E.O. 13563
completed in August 2011. NASAs full
plan can be accessed on the Agencys
open Government Web site at http://
www.nasa.gov/open/.
DATES: This direct final rule is effective
on March 25, 2013. Comments due on
or before February 25, 2013. If adverse
comments are received, NASA will
publish a timely withdrawal of the rule
in the Federal Register.
ADDRESSES: Comments must be
identified with RINs 2700AD61 and
may be sent to NASA via the Federal ERulemaking Portal: http://
www.regulations.gov. Follow the online
instructions for submitting comments.
Please note that NASA will post all
comments on the Internet with changes,
including any personal information
provided.
FOR FURTHER INFORMATION CONTACT:
Steve Peyton, 2023580191,
steven.l.peyton@nasa.gov.
SUPPLEMENTARY INFORMATION:
erowe on DSK2VPTVN1PROD with
SUMMARY:
Background
In accordance with E.O. 13526,
Classified National Security
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Information, 32 CFR part 2001,

Information Security Oversight Office
(ISOO) Classified National Security
Information Final Rule Implementing
Directive, E.O. 12968, Access to
Classified Information, E.O. 13549,
Classified National Security Information
Programs for State, Local, Tribal and
Private Sector Entities, E.O. 12829,
National Industrial Security Program,
and 51 U. S. C., 20132 and 20133,
National and Commercial Space
Program, the President and the NASA
Administrator establish security
requirements, restrictions, and
safeguards for NASA information in the
interest of national security.
Part 1203 is the foundation for
establishing NASAs information
security program implementation
requirements. It prescribes security and
protective services requirements for
NASA Headquarters, NASA Centers,
and component facilities in order to
protect the Agencys employees,
contractors, property, and information.
Therefore, it is being amended to
comply with the Order and the
Implementing Directive and to clarify
the requirements for establishing an
Information Security Program and
handling National Security Information.
Additional provisions of part 1203 are
implemented in NASA Procedural
Requirements (NPR) 1600.2, NASA
Information, to further ensure
compliance. NPR 1600.2 can be
accessed at http://nodis3.gsfc.nasa.gov/
displayDir.cfm?t=NPR&c=1600&s=2.
Direct Final Rule and Significant
Adverse Comments
NASA has determined this
rulemaking meets the criteria for a
direct final rule because it involves
clarifications, updating, and
nonsubstantive changes to existing
regulations. NASA does not anticipate
this direct final rule will result in major
changes to its security procedures.
However, if NASA receives significant
adverse comments, NASA will
withdraw this final rule by publishing a
note in the Federal Register in order to
revisit the commented-on language. In
determining whether a comment
necessitates withdrawal of this final
rule, NASA will consider whether it
warrants a substantive response in a
notice and comment process.
Statutory Authority
Section 1203 is established under E.O.
13526, 32 CFR parts 2001 and 2003, the
Implementing Directive, E.O. 12968 as
amended, Access to Classified
Information, E.O. 13549, Classified
National Security Information Programs
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for State, Local, Tribal and Private

Sector Entities, E.O. 12829, National
Industrial Security Program, and The
Space Act, in accordance with 51
U.S.C., National and Commercial Space
Program. Sections 20132 and 20133
authorize the NASA Administrator to
establish security rules and procedures
to handle and safeguard Classified
National Security Information. The rules
serve to achieve compliance with the
Administators objectives for the
protection of NASAs personnel,
property, and information.
Regulatory Analysis
Executive Order 12866, Regulatory
Planning and Review and Executive
Order 13563, Improving Regulation and
Regulation Review
Executive Orders 13563 and 12866
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. This rule
has been designated as administrative
under section 3(f) of Executive Order
12866. Accordingly, the rule has been
reviewed by the Office of Management
and Budget.
Review Under the Regulatory Flexibility
Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires an agency to
prepare an initial regulatory flexibility
analysis to be published at the time the
proposed rule is published. This
requirement does not apply if the
agency certifies that the rule will not,
if promulgated, have a significant
economic impact on a substantial
number of small entities (5 U.S.C. 603).
This rule does not have a significant
number of small entities.
Review Under the Paperwork Reduction
Act
This direct final rule does not contain
any information collection requirements
subject to the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.).
Review Under Executive Order of 13132
E.O. 13132, Federalism, 64 FR
43255 (August 4, 1999) requires
regulations be reviewed for Federalism
effects on the institutional interest of
states and local governments, and, if the
E:\FR\FM\24JAR1.SGM
24JAR1
effects are sufficiently substantial,
preparation of the Federal assessment is
required to assist senior policy makers.
The amendments will not have any
substantial direct effects on state and
local governments within the meaning
of the Order. Therefore, no Federalism
assessment is required.
List of Subjects in 14 CFR Part 1203
National security information,
security information.
Accordingly, under the authority of
the National Aeronautics and Space Act,
as amended, [51 U.S.C. 20113], NASA
amends 14 CFR part 1203 as follows:
PART 1203INFORMATION SECURITY
PROGRAM
1. The authority citation for part 1203
is revised to read as follows:
Authority: E.O. 13526, E.O. 12968, E.O.

13549, E.O. 12829, 32 CFR part 2001, and 51
U.S.C., 20132, 20133.
Subpart AScope
2. Amend 1203.100 as follows:
a. In paragraph (a), remove E.O.
number 12958 from the heading and
add in its place E.O. number 13526
and remove the citation (E.O. 12958, 3
CFR, 1996 Comp., p. 333), as amended
(See, Order of October 13, 1995, 3 CFR,
1996 Comp., p. 513).
b. Revise paragraph (c)(1) introductory
text.
c. In paragraph (c)(2) introductory
text, add the word Space in front of
the word Act.
The revision reads as follows:
1203.100
Legal basis.
*
*
*
*
(c) * * *
(1) The National Aeronautics and
Space Act (51 U.S.C. 20113) (Hereafter
referred to as, The Space Act), states:
*
*
*
*
*
3. Amend 1203.101 by revising
paragraph (c) to read as follows:
1203.101 Other applicable NASA
regulations.
*
*
*
*
(c) NASA Procedural Requirements
(NPR) 1600.2, NASA Classified National
Security Information (CNSI).
Subpart BNASA Information Security
Program
a. Revise paragraph (b) introductory
text.
b. In paragraph (c), remove the
quotation marks from around the words
The Order.
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1203.200
Background and discussion.
*
*
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*
(b) The Order was promulgated in
recognition of the essential requirement
for an informed public concerning the
activities of its Government, as well as
the need to protect certain national
security information from unauthorized
disclosure. It delegates to NASA certain
responsibility for matters pertaining to
national security and confers on the
Administrator of NASA, or such
responsible officers or employees as the
Administrator may designate, the
authority for original classification of
official information or material which
requires protection in the interest of
national security. It also provides for:
*
*
*
*
*
1203.201
[Amended]
5. In 1203.201(d), remove the words

interchange of information, techniques,
or hardware and add in their place the
words exchange or sharing of
information, techniques, hardware,
software, or other technologies.
a. Revise paragraph (a) introductory
text.
b. In paragraph (a)(1), add the
acronym (NISP) after the word
Program.
c. In paragraph (a)(3), add the
acronym NISPC after the words
NASA Information Security Program
Committee and remove the words
and add in their place the acronym
NISP.
d. Revise paragraph (a)(4).
e. In paragraph (a)(5), remove the
word Issuing and add in its place the
word Ensuring and add the words
are developed for NASA before the
word programs.
f. In paragraph (a)(6), remove the word
30-year-old and add in its place the
word all.
g. In paragraph (a)(7), add an
apostrophe to the end of the word
records at its second occurrence.
h. In paragraph (a)(8), remove the
words NASA Information Security
Program and add in their place the
acronym NISP.
i. In paragraph (b), remove the words
Committee and add in their place the
acronym NISPC and remove the word
herein and add in its place the words
in this section.
j. In paragraph (c)(2), remove the
Program Committee and add in their
place the acronym NISPC.
k. In paragraph (c)(3), add the words
within a reasonable period after the
word guidelines.
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5117
l. In paragraph (d) introductory text,

remove the words Officials-in-Charge
of Headquarters Offices and add in
their place the words supervisors of
NASA offices.
m. In paragraph (d)(2), remove the
word eliminate and add in its place
the word redact and add the words
contained therein after the word
information.
n. In paragraph (e) introductory text,
remove the words Directors of Field
Installations and add in their place the
words Chiefs of Protective Services at
NASA Centers.
o. In paragraph (e)(1), add the words
and submitting the guide to the Office
of Protective Services for review and
approval after the word Guides.
p. In paragraph (e)(2), remove the
word installations and add in its
place the word Center.
q. In paragraph (e)(3), remove the
word eliminate and add in its place
the word redact.
r. Revise paragraph (e)(4).
s. In paragraph (f), remove the words
Senior Security Specialist, NASA
Security Office and add in their place
the words Director of the Office of
Protective Services and remove the
Program Committee and add in their
place the acronym NISPC.
t. In paragraph (g), remove the words
Director, NASA Security Management
Office and add in their place the words
Information Security Program
Manager, Office of Protective Services
(OPS).
The revisions read as follows:
1203.202
Responsibilities.
(a) The Chairperson, NASA

Committee (NISPC) (Subpart I of this
part), who is the Assistant
Administrator for Protective Services, or
designee, is responsible for:
*
*
*
*
*
(4) Coordinating NASA security
classification matters with NASA
Centers and component facilities and
other Government agencies.
*
*
*
*
*
(e) * * *
(4) Coordinating all security
classification actions with the Centers
Protective Services Office.
*
*
*
*
*
7. In 1203.203, revise paragraphs
(b)(1) and (2) to read as follows:
1203.203
Degree of protection.
*
*
*
*
(b)(1) Top Secret. Top Secret is the
designation applied to information or
material, the unauthorized disclosure of
E:\FR\FM\24JAR1.SGM
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5118
which could reasonably be expected to

cause exceptionally grave damage to the
national security.
(2) Secret. Secret is the designation
applied to information or material, the
unauthorized disclosure of which could
reasonably be expected to cause serious
damage to the national security.
*
*
*
*
*
Subpart CClassification Principles
and Considerations
8. Revise 1203.302 to read as
follows:
1203.302
Compilation.
A compilation of items that are

individually unclassified may be
classified if the compiled information
reveals an additional association or
relationship that meets the standards of
classification under the Order; and is
not otherwise revealed in the individual
items of information. As used in the
Order, compilations mean an aggregate
of pre-existing unclassified items of
information.
9. Revise 1203.303 to read as set
forth below.
1203.303
Distribution controls.
NASA shall establish controls over

the distribution of classified information
to ensure that it is dispersed only to
organizations or individuals eligible for
access to such information and with a
need-to-know the information.
1203.304
[Amended]
10. Amend 1203.304 by removing

the words in light of and add in their
place the words and weighed against.
1203.305
[Amended]
11. Amend 1203.305 by adding the

words or by operation of law after the
word originated, adding the words
and Formerly Restricted Data after the
third occurrence of the word Data,
and adding the words and/or
Department of Defense after the word
Energy.
Subpart DGuidance for Original

Classification
follows:
1203.400
14:44 Jan 23, 2013
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1203.403
[Reserved]
13. Remove and reserve 1203.403.
1203.405
[Amended]

from the last sentence , General
Services Administration, Washington,
DC 20405, after the word Office.
15. Amend 1203.406, in paragraph
(b), by adding a new second sentence to
read as follows:
1203.406
factors.
Additional classification
*
*
*
*
(b) * * * The Office of Protective
Services will coordinate with the
Information Security Oversight Office
(ISOO) Committee and the National
Declassification Center to determine
what classification guides are current.
* * *
follows:
1203.407
Specific classifying guidance.
Technological and operational

information and material, and in some
exceptional cases scientific information
falling within any one or more of the
following categories, must be classified
if its unauthorized disclosure could
reasonably be expected to cause some
degree of damage to the national
security. In cases where it is believed
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that a contrary course of action would

better serve the national interests, the
matter should be referred to the
Chairperson, NISPC, for a
determination. It is not intended that
this list be exclusive; original classifiers
are responsible for initially classifying
any other type of information which, in
their judgment, requires protection
under 1.4 of the Order.
(a) Military plans, weapons systems,
or operations;
(b) Foreign government information;
(c) Intelligence activities (including
covert activities), intelligence sources or
methods, or cryptology;
(d) Foreign relations or foreign
activities of the United States, including
confidential sources;
(e) Scientific, technological, or
economic matters relating to the
national security;
(f) United States Government
programs for safeguarding nuclear
materials or facilities;
(g) Vulnerabilities or capabilities of
systems, installations, infrastructures,
projects, plans, or protection services
relating to the national security; or
(h) The development, production, or
plans relating to the use of weapons of
mass destruction.
Duration of classification.
(a) At the time of original

classification, the original classification
authority shall establish a specific date
or event for declassification based on
the duration of the national security
sensitivity of the information. Upon
reaching the date or event, the
information shall be automatically
declassified. Except for information that
should clearly and demonstrably be
PO 00000
Frm 00004
Fmt 4700
Sfmt 4700
expected to reveal the identity of a

confidential human source or a human
intelligence source or key design
concepts of weapons of mass
destruction, the date or event shall not
exceed the timeframe established in
paragraph (b) of this section.
(b) If the original classification
authority cannot determine an earlier
specific date or event for
declassification, information shall be
marked for declassification 10 years
from the date of the original decision,
unless the original classification
authority otherwise determines that the
sensitivity of the information requires
that it be marked for declassification for
up to 25 years from the date of the
original decision.
(c) An original classification authority
may extend the duration of
classification up to 25 years from the
date of origin of the document, change
the level of classification, or reclassify
specific information only when the
standards and procedures for classifying
information under this Order are
followed.
(d) No information may remain
classified indefinitely. Information that
is marked for an indefinite duration of
classification under predecessor orders,
for example, information marked as
Originating Agencys Determination
Required, or classified information that
contains either incomplete or no
declassification instructions, shall have
appropriate declassification information
applied in accordance with part 3 of this
order.
17. Section 1203.408 is amended as
follows:
a. Revise the section heading.
b. Amend the introductory text and
paragraphs (a) and (d) by removing the
word installation wherever it appears
and adding in its place the word
Center.
c. Add paragraph (e).
The revision and addition read as
follows:
1203.408 Assistance by Information
Security Specialist in the Center Protective
Services Office.
*
*
*
*
(e) Forwarding all security
classification guides to the Office of
Protective Services, NASA
Headquarters, for final approval.
a. Revise paragraph (a).
b. Amend paragraph (c) by removing
number 30 and adding in its place the
number 90 and removing GSA,.
1203.409
Exceptional cases.
(a) In those cases where a person not

authorized to classify information
E:\FR\FM\24JAR1.SGM
24JAR1
originates or develops information
which is believed to require
classification, that person must contact
the Centers or installations Information
Security Officer in the Protective
Services Office to arrange for proper
review and safeguarding. Persons other
than NASA employees should forward
the information to the NASA Central
Registry at 300 E Street SW.,
Washington, DC 20546, Attention:
Office of Protective Services.
*
*
*
*
*
a. Revise paragraphs (a), (c), (d), and
(e).
b. Remove paragraphs (f) and (g).
1203.410
Limitations.
(a) In no case shall information be

classified, continue to be maintained as
classified, or fail to be declassified in
order to:
(1) Conceal violations of law,
inefficiency, or administrative error;
(2) Prevent embarrassment to a
person, organization, or agency;
(3) Restrain competition; or
(4) Prevent or delay the release of
information that does not require
protection in the interest of the national
security.
*
*
*
*
*
(c) Information may not be
reclassified after declassification after
being released to the public under
proper authority unless: The
reclassification is based on a documentby-document review by NASA and a
determination that reclassification is
required to prevent at least significant
damage to the national security and
personally approved in writing by the
Administrator, the Deputy
Administrator, or the Assistant
Administrator for Protective Services.
All reclassification actions will be
coordinated with the Information
Security Oversight Office before final
approval; the information may be
reasonably recovered without bringing
undue public attention to the
information; the reclassification action
is reported promptly to the Assistant to
the President for National Security
Affairs (the National Security Advisor)
and the Director of the Information
Security Oversight Office; and for
documents in the physical and legal
custody of the National Archives and
Records Administration (National
Archives) that have been available for
public use, the Administrator, the
Deputy Administrator, or the Assistant
Administrator for Protective Services,
after making the determinations
required by this paragraph, shall notify
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15:59 Jan 23, 2013
Jkt 229001
the Archivist of the United States

(hereafter, Archivist), who shall
suspend public access pending approval
of the reclassification action by the
Director of the Information Security
Oversight Office. Any such decision by
the Director may be appealed by the
agency head to the President through
the National Security Advisor. Public
access shall remain suspended pending
a prompt decision on the appeal.
(d) Information that has not
previously been disclosed to the public
under proper authority may be
classified or reclassified after an agency
has received a request for it under the
Freedom of Information Act (5 U.S.C.
552), the Presidential Records Act, 44
U.S.C. 2204(c)(1), the Privacy Act of
1974 (5 U.S.C. 552a), or the mandatory
review provisions of section 3.5 of this
Order only if such classification meets
the requirements of this Order and is
accomplished by document-bydocument review with the personal
participation or under the direction of
the Administrator, the Deputy
Administrator for Protective Services.
The requirements in this paragraph also
apply to those situations in which
information has been declassified in
accordance with a specific date or event
determined by an original classification
authority in accordance with section 1.5
of this Order.
(e) Compilations of items of
information that are individually
unclassified may be classified if the
compiled information reveals an
additional association or relationship
that:
(1) Meets the standards for
classification under this Order; and
(2) Is not otherwise revealed in the
individual items of information.
a. Revise paragraphs (a)(3) and (5).
b. Amend paragraph (b), in the first
sentence, by removing the word two
and adding in its place the word five.
1203.412
Classification guides.
(a) * * *
(3) State the duration of each
specified classification in terms of a
period of time or future event. If the
original classification authority cannot
determine an earlier specific date or
event for declassification, information
shall be marked for declassification 10
years from the date of the original
decision, unless the original
classification authority otherwise
determines that the sensitivity of the
information requires it be marked for
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
5119
declassification for up to 25 years from

the date of the original decision.
*
*
*
*
*
(5) All security classification guides
should be forwarded to the Office of
Protective Services for review and final
approval. The Office of Protective
Services will maintain a list of all
classification guides in current use.
*
*
*
*
*
Subpart EDerivative Classification
follows:
1203.500
Use of derivative classification.
(a) Persons who reproduce, extract, or

summarize classified information, or
who apply classification markings
derived from source material or as
directed by a classification guide, need
not possess original classification
authority.
(b) Persons who apply derivative
classification markings shall:
(1) Be identified by name and position
or by personal identifier, in a manner
that is immediately apparent for each
derivative classification action;
(2) Observe and respect original
classification decisions; and
(3) Carry forward to any newly
created documents the pertinent
classification markings. For information
derivatively classified based on multiple
sources, the derivative classifier shall
carry forward:
(i) The date or event for
declassification that corresponds to the
longest period of classification among
the sources or the marking established
pursuant to section 1.6(a)(4)(D) of the
Order; and
(ii) A listing of the source materials.
(c) Derivative classifiers shall,
whenever practicable, use a classified
addendum when classified information
constitutes a small portion of an
otherwise unclassified document or
prepare a product to allow for
dissemination at the lowest level of
classification possible or in unclassified
form.
(d) Persons who apply derivative
classification markings shall receive
training in the proper application of the
derivative classification principles of
the Order, with an emphasis on
avoiding over-classification, at least
once every two years. Derivative
classifiers who do not receive such
training at least once every two years
shall have their authority to apply
derivative classification markings
suspended until they have received
such training. A waiver may be granted
by the Administrator, the Deputy
E:\FR\FM\24JAR1.SGM
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5120
Administrator for Protective Services if

an individual is unable to receive such
training due to unavoidable
circumstances. Whenever a waiver is
granted, the individual shall receive
such training as soon as practicable.
Subpart FDeclassification and
Downgrading
1203.601
[Amended]

the words Officials authorized original
classification authority and adding in
their place the words Authorized
officials with Declassification Authority
(DCA).
follows:
1203.602
Authorization.
Information shall be declassified or

downgraded by an authorized DCA
official. If that official is still serving in
the same position, the originators
successor, a supervisory official of
either, or officials delegated such
authority in writing by the
Administrator or the Chairperson,
NISPC, may also make a decision to
declassify or downgrade information.
follows:
1203.603 Systematic review for

declassification:
(a) General. (1) NASA must establish

and conduct a program for systematic
declassification review of NASAoriginated records of permanent
historical value exempted from
automatic declassification under section
3.3 of this Order. The NASA Office of
Protective Services shall prioritize the
review of such records in coordination
with the Center Protective Service
Offices.
(2) The Archivist shall conduct a
systematic declassification review
program for classified records:
(i) Accessioned into the National
Archives;
(ii) Transferred to the Archivist
pursuant to 44 U.S.C. 2203; and
(iii) For which the National Archives
serves as the custodian for an agency or
organization that has gone out of
existence.
(3) The Chairperson, NISPC, shall
designate experienced personnel to
assist the Archivist in the systematic
review of U.S. originated information
and foreign information exempted from
automated declassification. Such
personnel shall:
(i) Provide guidance and assistance to
the National Archives and Records
Service in identifying and separating
documents and specific categories of
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14:44 Jan 23, 2013
Jkt 229001
information within documents which

are deemed to require continued
classification; and
(ii) Develop reports of information or
document categories so separated, with
recommendations concerning continued
classification.
(iii) Develop, in coordination with
NASA organizational elements,
guidelines for the systematic review for
declassification of classified information
under NASAs jurisdiction. The
guidelines shall state specific limited
categories of information which,
because of their national security
sensitivity, should not be declassified
automatically, but should be reviewed
to determine whether continued
protection beyond 25 years is needed.
These guidelines are authorized for use
by the Archivist and the Director of the
Information Security Oversight Office,
with the approval of the Senior Agency
Official, which is the Assistant
Administrator, Office of Protective
Services, for categories listed in section
3.3 of the Order. These guidelines shall
be reviewed at least every five years and
revised as necessary, unless an earlier
review for revision is requested by the
Archivist. Copies of the declassification
guidelines promulgated by NASA will
be provided to the Information Security
Oversight Office, National Archives and
Records Administration (NARA). All
security classified records exempt from
automatic declassification, whether held
in storage areas under installation
control or in Federal Records Centers,
will be surveyed to identify those
requiring scheduling for future
disposition.
(A) Classified information or material
over which NASA exercises exclusive or
final original classification authority
and which is to be declassified in
accordance with the systematic review
guidelines shall be so marked.
(B) Classified information or material
over which NASA exercises exclusive or
final original classification authority
and which, in accordance with the
systematic review guidelines is to be
kept protected, shall be listed by
category by the responsible custodian
and referred to the Chairperson, NASA
Committee. This listing shall:
(1) Identify the information or
material involved.
(2) Recommend classification beyond
25 years to a specific event scheduled to
happen or a specific period of time in
accordance with the Order.
(3) The Administrator shall delegate
to the Senior Agency Official the
authority to determine which category
shall be kept classified and the dates or
event for declassification.
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
(4) Declassification by the Director of

the Information Security Oversight
Office (DISOO). If the Director
determines that NASA information is
classified in violation of the Order, the
Director may require the information to
be declassified. Any such decision by
the Director may be appealed through
the NASA ISPC to the National Security
Council. The information shall remain
classified pending a prompt decision on
the appeal.
(b) [Reserved]
a. Revise paragraphs (a) and (b).
b. Amend (c)(1) by removing the
words installation which originated
the information and adding in their
place the words Office of Protective
Services.
c. Revise paragraph (c)(2).
d. Amend paragraph (d)(1) by
removing the words shall be processed
in accordance with part 1206 of this
chapter and adding in their place the
words cannot be processed under the
MDR process.
e. Revise paragraphs (d)(2) through
(4).
f. Revise paragraphs (e)(1), (3) and (5).
g. Amend paragraph (e)(2) by
removing the word installation and
adding in its place the words Office of
Protective Services.
h. Revise paragraph (g)(2)
The revisions read as follows:.
1203.604 Mandatory review for
declassification.
(a) Information covered. Except as

provided in paragraph (b) of this
section, all information classified under
the Order or predecessor orders shall be
subject to a review for declassification
by the originating agency if:
(1) The request for a review describes
the document or material containing the
information with sufficient specificity to
enable the agency to locate it in a
reasonably timely manner;
(2) The document or material
containing the information responsive
to the request is not contained within an
operational file exempted from search
and review, publication, and disclosure
under 5 U.S.C. 552 in accordance with
law; and
(3) The information is not the subject
of pending litigation.
(b) Presidential papers. Information
originated by the President or Vice
President; the Presidents White House
Staff, or the Vice Presidents Staff;
committees, commissions, or boards
appointed by the President; or other
entities within the Executive Office of
the President that solely advise and
assist the President are exempted from
the provisions of paragraph (a) of this
E:\FR\FM\24JAR1.SGM
24JAR1
section. However, the Archivist shall
have the authority to review,
downgrade, and declassify papers or
records of former Presidents and Vice
Presidents under the control of the
Archivist pursuant to 44 U.S.C. 2107,
2111, 2111 note, or 2203. Procedures
developed by the Archivist shall
provide for consultation with agencies
having primary subject matter interest
and shall be consistent with the
provisions of applicable laws or lawful
agreements that pertain to the respective
Presidential papers or records. Agencies
with primary subject matter interest
shall be notified promptly of the
Archivists decision. Any final decision
by the Archivist may be appealed by the
requester or an agency to the Panel. The
information shall remain classified
pending a decision on the appeal.
(c) * * *
(2) For the most expeditious action,
requests from other Governmental
agencies or from members of the public
should be submitted directly to the
NASA Office of Protective Services
only. The requestor may submit the
request to: National Aeronautics and
Space Administration (NASA), Central
Registry, 300 E Street SW., Washington
DC 20546, Attention: Office of
Protective Services/Information Security
Program Manager. The phrase,
Mandatory Declassification Review,
must be stated in the request.
(d) * * *
(2) The request describes the
document or material containing the
information with sufficient specificity,
such as accession numbers, box titles or
numbers, date and title of document, in
any combination, to enable NASA to
locate it with a reasonable amount of
effort, not to exceed 30 days. If more
time is required, NASA will notify the
requester. After review, the information
or any portion thereof that no longer
requires protection shall be declassified
and released unless withholding is
otherwise warranted under applicable
law.
(3) The requester shall be asked to
correct a request that does not comply
with paragraph (d)(2) of this section, to
provide additional information, or to
narrow the scope of the request; and
shall be notified that no action will be
taken until the requester complies.
(4) If the request requires the
rendering of services for which fees may
be charged under 31 U.S.C. 483a (1976),
the rates prescribed in 1206.700 shall
be used, as appropriate.
(e) * * *
(1) The NASA Office of Protective
Services review upon receiving the
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14:44 Jan 23, 2013
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initial request shall be completed within

365 days.
*
*
*
*
*
(3) All appeals of denials of requests
for declassification shall be acted upon
and determined finally within 120
working days after receipt, and the
requester shall be advised that the
appeal determination is final. If the
requester is dissatisfied with NASAs
appeal decision, the requester may
initiate an appeal to the Interagency
Security Classification Appeals Panel
(ISCAP), within the Information
Security Oversight Office. If continued
classification is required under the
provisions of this part 1203, the
requester shall be notified of the reasons
thereof.
*
*
*
*
*
(5) When the NASA Office of
Protective Services receives any request
for declassification of information in
documents in its custody that was
classified by another Government
agency, it shall refer copies of the
request and the requested documents to
the originating agency for processing
and may, after consultation with the
originating agency, inform the requester
of the referral.
*
*
*
*
*
(g) * * *
(2) Material not officially transferred.
When NASA has in its possession
classified information or material
originated by an agency which has since
ceased to exist and that information has
not been officially transferred to another
department or agency or when it is
impossible for NASA to identify the
originating agency and a review of the
material indicates that it should be
downgraded or declassified, NASA shall
be deemed to be the originating agency
for the purpose of declassifying or
downgrading such material. NASA will
consult with the Information Security
Oversight Office to assist in final
disposition of the information.
*
*
*
*
*
Subpart G[Removed and Reserved]
26. Remove and reserve Subpart G,
consisting of 1203.700 through
1203.703.
Subpart HDelegation of Authority To

Make Determinations in Original
Classification Matters
27. Revise 1203.800, 1203.801 and
1203.802 to read as follows:
1203.800
Establishment.
Pursuant to Executive Order 13526,

Information, and The Space Act, in
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
5121
accordance with U.S.C. Title 51,

Program Sections 20132 and 20133,
there is established a NASA Information
Security Program Committee (as part of
the permanent administrative structure
of NASA). The NASA Assistant
designee, shall be the Chairperson of the
Committee. The Information Security
Program Manager, NASA Office of
Protective Services, is designated to act
as the Committee Executive Secretary.
1203.801
Responsibilities.
(a) The Chairperson reports to the

Administrator concerning the
management and direction of the NASA
Information Security Program as
provided for in subpart B of this part.
In this connection, the Chairperson is
supported and advised by the
Committee.
(b) The Committee shall act on all
appeals from denials of declassification
requests and on all suggestions and
complaints with respect to
administration of the NASA Information
Security Program as provided for in
subpart B of this part.
(c) The Executive Secretary of the
Committee shall maintain all records
produced by the Committee, its
subcommittees, and its ad hoc panels.
(d) The Office of Protective Services
will provide staff assistance and
investigative and support services for
the Committee.
1203.802
Membership.
The Committee membership will

consist of the Chairperson, the
Executive Secretary, and one person
nominated by each of the following
NASA officials:
(a) The Associate Administrators for:
(1) Aeronautics.
(2) Science Missions Directorate.
(3) Human Explorations and
Operations.
(4) International and Interagency
Relations.
(b) The Associate Administrator.
(c) The General Counsel.
(d) The Chief Information Officer.
(e) Other members may be designated
upon specific request of the
Chairperson.
28. Add 1203.803 and 1203.804 to
subpart H to read as follows:
1203.803
Ad hoc committees.
The Chairperson is authorized to

establish such ad hoc panels or
subcommittees as may be necessary in
the conduct of the Committees work.
1203.804
Meetings.
(a) Meetings will be held at the call of

the Chairperson.
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5122
(b) Records produced by the

Committee and the minutes of each
meeting will be maintained by the
Executive Secretary.
Subpart INASA Information Security
Program Committee
follows:
(4) International and Interagency

Relations.
(b) The Associate Administrator.
(c) The General Counsel.
(d) The Chief Information Officer.
(e) Other members may be designated
upon specific request of the
Chairperson.
1203.900
1203.1002
Establishment.
Pursuant to Executive Order 13526,

Information, and The Space Act, in
accordance with U.S.C. Title 51,
Program Sections 20132 and 20133,
there is established a NASA Information
Security Program Committee (as part of
the permanent administrative structure
of NASA. The NASA Assistant
designee, shall be the Chairperson of the
Committee. The Information Security
Program Manager, NASA Office of
Protective Services, is designated to act
as the Committee Executive Secretary.
1203.901
[Amended]
30. Amend 1203.901, in paragraph

(d), by removing the words NASA
Security Office, NASA Headquarters
and adding in their place the Office of
Protective Services.
31. Add subpart J to read as follows:
Ad hoc committees.
The Chairperson is authorized to

establish such ad hoc panels or
subcommittees as may be necessary in
the conduct of the Committees work.
1203.1003
Meetings.
(a) Meetings will be held at the call of

the Chairperson.
(b) Records produced by the
Committee and the minutes of each
meeting will be maintained by the
Executive Secretary.
Charles F. Bolden, Jr.,
Administrator.
[FR Doc. 201300532 Filed 12313; 8:45 am]
BILLING CODE P

Subpart JSpecial Access Programs (SAP)

and Sensitive Compartmented Information
(SCI) Programs
Sec.
1203.1000 General.
1203.1001 Membership.
1203.1002 Ad hoc committees.
1203.1003 Meetings.
Subpart JSpecial Access Programs

(SAP) and Sensitive Compartmented
Information (SCI) Programs
1203.1000
General.
A SAP or SCI program shall be

created within NASA only upon
specific written approval of the
Administrator and must be coordinated
with the Assistant Administrator for
Protective Services, or designee, to
ensure required security protocols are
implemented and maintained.
1203.1001
Membership.
The Committee membership will

consist of the Chairperson, the
Executive Secretary, and one person
nominated by each of the following
NASA officials:
(a) The Associate Administrators for:
(1) Aeronautics.
(2) Science Missions Directorate.
(3) Human Explorations and
Operations.
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14 CFR Parts 1203a, 1203b, and 1204

[Docket No NASA20120007]
RIN 2700AD89
NASA Security and Protective Services

Enforcement
Space Administration.
ACTION: Direct final rule.
AGENCY:
This direct final rule makes

nonsubstantive changes to NASA
regulations to clarify the procedures for
establishing controlled/secure areas and
to revise the definitions for these areas
and the process for granting access to
these areas, as well as denying or
revoking access to such areas. Arrest
powers and authority of NASA security
force personnel are also updated and
clarified to include the carrying of
weapons and the use of such weapons
should a circumstance require it. The
revisions to these rules are part of
NASAs retrospective plan under E.O.
13563 completed in August 2011.
NASAs full plan can be accessed on the
Agencys open Government Web site at
http://www.nasa.gov/open/.
DATES: This direct final rule is effective
on March 25, 2013. Comments due on
or before February 25, 2013. If adverse
comments are received, NASA will
publish a timely withdrawal of the rule
in the Federal Register.
ADDRESSES: Comments must be
identified with RIN 2700AD89 and
SUMMARY:
PO 00000
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may be sent to NASA via the Federal ERulemaking Portal: http://

www.regulations.gov. Follow the online
instructions for submitting comments.
Please note that NASA will post all
comments on the Internet with changes,
including any personal information
provided.
Charles Lombard, 2023580891,
charles.e.lombard@nasa.gov.
SUPPLEMENTARY INFORMATON:
Direct Final Rule and Significant
Adverse Comments
NASA has determined this
rulemaking meets the criteria for a
direct final rule because it involves
clarifications, updating, and minor
substantive changes to existing
regulations. NASA does not anticipate
this direct final rule will result in major
changes to its security procedures.
However, if NASA receives significant
adverse comments, NASA will
withdraw this final rule by publishing a
note in the Federal Register to review
the commented-on language. In
determining whether a comment
necessitates withdrawal of this final
rule, NASA will consider whether it
warrants a substantive response in a
notice and comment process.
Background
Part 1203a, NASA Security Areas,
that describes the legal basis and other
applicable NASA regulations related to
NASAs security and law enforcement
services implementation requirements,
was promulgated March 28, 1972, [38
FR 8056]. Changes are being made to
align this part with Homeland Security
Presidential Directive (HSPD) 12,
Policies for a Common Identification
Standard for Federal Employees and
Contractors, dated August 27, 2004.
HSPD 12 establishes a mandatory,
Government-wide standard for secure
and reliable forms of identification
issued by the Federal Government to its
employees and contractors to increase
Government efficiency, reduce identity
fraud, and protect personal privacy.
Part 1203b, Security Programs;
Arrest Authority and Use of Force by
NASA Security Force Personnel, that
describes guidelines for the exercise of
arrest authority, was promulgated
February 11, 1992, [57 FR 4926].
Changes are being made to align this
part with the guidelines described in
Executive Order 12977, Interagency
Security Committee (ISC) [60 FR 5441].
The ISC is responsible for establishing
policies for the security in and
protection of Federal facilities, ISC
Standards, Physical Security Criteria for
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Federal Register / Vol. 78, No. 24 / Tuesday, February 5, 2013 / Notices

Dated: January 30, 2013.
Tracey L. Thompson,
Acting Deputy Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 201302419 Filed 2413; 8:45 am]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
RIN 0648XC479
Fisheries of the Gulf of Mexico;

Southeast Data, Assessment, and
Review (SEDAR); Public Meetings
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of SEDAR 31 Gulf of
Mexico red snapper assessment
webinars.
AGENCY:
The SEDAR 31 assessment of

the Gulf of Mexico red snapper fishery
will consist of a series of workshops and
supplemental webinars. This notice is
for webinars associated with the
Assessment portion of the SEDAR
process. See SUPPLEMENTARY
INFORMATION.
DATES: The SEDAR 31 Assessment
Workshop webinars will be held on:
February 21, 2013; February 28, 2013;
March 7, 2013; March 14, 2013; and
March 21, 2013. All webinars are
scheduled from 1 p.m. until 5 p.m. EDT.
ADDRESSES:
Meeting address: The webinars will
be held via a GoToWebinar Conference.
The webinars are open to members of
the public. Those interested in
participating should contact Ryan
Rindone at SEDAR (see FOR FURTHER
INFORMATION CONTACT) to request an
invitation providing webinar access
information. Please request meeting
information at least 24 hours in
advance.
SEDAR address: 4055 Faber Place
Drive, Suite 201, N. Charleston, SC
29405.
Ryan Rindone, SEDAR Coordinator;
telephone: (813) 3481630; email:
ryan.rindone@gulfcouncil.org.
SUPPLEMENTARY INFORMATION: The Gulf
of Mexico, South Atlantic, and
Caribbean Fishery Management
Councils, in conjunction with NOAA
Fisheries and the Atlantic and Gulf
States Marine Fisheries Commissions,
have implemented the Southeast Data,
Assessment and Review (SEDAR)
process, a multi-step method for
tkelley on DSK3SPTVN1PROD with NOTICES
SUMMARY:
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determining the status of fish stocks in

the Southeast Region. SEDAR is a threestep process including: (1) Data
Workshop; (2) Assessment Process
including a workshop and webinars;
and (3) Review Workshop. The product
of the Data Workshop is a data report
which compiles and evaluates potential
datasets and recommends which
datasets are appropriate for assessment
analyses. The product of the Assessment
Process is a stock assessment report
which describes the fisheries, evaluates
the status of the stock, estimates
biological benchmarks, projects future
population conditions, and recommends
research and monitoring needs. The
assessment is independently peer
reviewed at the Review Workshop. The
product of the Review Workshop is a
Consensus Summary documenting
panel opinions regarding the strengths
and weaknesses of the stock assessment
and input data. Participants for SEDAR
Workshops are appointed by the Gulf of
Mexico, South Atlantic, and Caribbean
Fishery Management Councils and
NOAA Fisheries Southeast Regional
Office and Southeast Fisheries Science
Center. Participants include: data
collectors and database managers; stock
assessment scientists, biologists, and
researchers; constituency
representatives including fishermen,
environmentalists, and nongovernmental organizations (NGOs);
international experts; and staff of
Councils, Commissions, and state and
federal agencies.
The items of discussion in the
Assessment Workshop webinars are as
follows:
Panelists will continue deliberations
and discussions regarding modeling
methodologies for the Gulf of Mexico
Red Snapper.
Although non-emergency issues not
contained in this agenda may come
before this group for discussion, those
issues may not be the subject of formal
action during this meeting. Action will
be restricted to those issues specifically
identified in this notice and any issues
arising after publication of this notice
that require emergency action under
section 305(c) of the Magnuson-Stevens
Fishery Conservation and Management
Act, provided the public has been
notified of the intent to take final action
to address the emergency.
Special Accommodations
This meeting is accessible to people
with disabilities. Requests for auxiliary
aids should be directed to the SEDAR
office (see ADDRESSES) at least 10
business days prior to the meeting.
Note: The times and sequence specified in
this agenda are subject to change.
PO 00000
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William D. Chappell,
Acting Deputy Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 201302402 Filed 2413; 8:45 am]
Administration
RIN 0648XC478
Taking and Importing Marine

Mammals; Taking Marine Mammals
Incidental to Space Vehicle and Test
Flight Activities From Vandenberg Air
Force Base, CA
Service, National Oceanic and
Atmospheric Administration,
Commerce.
AGENCY:
Notice of issuance of a Letter of

Authorization.
ACTION:
In accordance with the

Marine Mammal Protection Act
(MMPA), as amended, and
implementing regulations, notification
is hereby given that a letter of
authorization (LOA) has been issued to
the 30th Space Wing, U.S. Air Force
(USAF), to take four species of seals and
sea lions incidental to rocket and
missile launches on Vandenberg Air
Force Base (VAFB), California, a
military readiness activity.
SUMMARY:
Effective February 7, 2013,

through February 6, 2014.
DATES:
The LOA and supporting

documentation are available for review
by writing to P. Michael Payne, Chief,
Permits and Conservation Division,
Office of Protected Resources, National
Marine Fisheries Service (NMFS), 1315
East-West Highway, Silver Spring, MD
20910, by telephoning one of the
contacts listed here (FOR FURTHER
INFORMATION CONTACT) or online at:
http://www.nmfs.noaa.gov/pr/permits/
incidental.htm. Documents cited in this
notice may be viewed, by appointment,
during regular business hours, at the
aforementioned address and at the
Southwest Regional Office, NMFS, 501
West Ocean Boulevard, Suite 4200,
Long Beach, CA 90802.
ADDRESSES:
Candace Nachman, Office of Protected

Resources, NMFS, (301) 4278401, or
Monica DeAngelis, NMFS, (562) 980
3232.
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Background
Section 101(a)(5)(A) of the MMPA (16
U.S.C. 1361 et seq.) directs NMFS to
allow, upon request, the incidental, but
not intentional, taking of small numbers
of marine mammals by U.S. citizens
who engage in a specified activity (other
than commercial fishing) within a
specified geographical region if certain
findings are made and regulations are
issued. The National Defense
Authorization Act (Public Law 108136)
removed the small numbers and
specified geographical region
limitations for a military readiness
activity. Under the MMPA, the term
taking means to harass, hunt, capture,
or kill or to attempt to harass, hunt,
capture, or kill marine mammals.
Authorization may be granted for
periods up to 5 years if NMFS finds,
after notification and opportunity for
public comment, that the taking will
have a negligible impact on the species
or stock(s) of marine mammals and will
not have an unmitigable adverse impact
on the availability of the species or
stock(s) for subsistence uses (where
relevant). In addition, NMFS must
prescribe regulations that include
permissible methods of taking and other
means effecting the least practicable
adverse impact on the species and its
habitat and on the availability of the
species for subsistence uses, paying
particular attention to rookeries, mating
grounds, and areas of similar
significance. The regulations must
include requirements for monitoring
and reporting of such taking.
Regulations governing the taking of
Pacific harbor seals (Phoca vitulina
richardsi), northern elephant seals
(Mirounga angustirostris), California sea
lions (Zalophus californianus), and
northern fur seals (Callorhinus ursinus),
by harassment, incidental to missile and
rocket launches, aircraft flight test
operations, and helicopter operations at
VAFB, were issued on February 6, 2009
(74 FR 6236), and remain in effect until
February 6, 2014. In April 2011, the
USAF requested a deviation from the
precise language contained in the 2009
final rule regarding the annual number
of missile and rocket launches. On
February 1, 2012 (77 FR 4917), NMFS
issued final regulations that revised the
number of missile and rocket launches
that the USAF could conduct from

VAFB on an annual basis. Instead of the
30 missile and 20 rocket launches
authorized per year in 2009, the USAFs
specified activity now includes 15
missile and 35 rocket launches per year.
However, the total number of annual
launches remains at 50. This regulatory
amendment does not change the
analyses of marine mammal impacts
conducted in the original final rule. For
detailed information on the USAFs
activities and potential impacts, please
refer to those documents. These
regulations include mitigation,
monitoring, and reporting requirements
for the incidental take of marine
mammals during missile and rocket
launches at VAFB.
This LOA is effective from February 7,
2013, through February 6, 2014, and
authorizes the incidental take, by Level
B harassment only, of the four marine
mammal species listed here that may
result from the launching of up to 15
missiles and up to 35 rockets annually
from VAFB, as well as from aircraft and
helicopter operations. Harbor seals haulout on several sites on VAFB, and
harbor seals, California sea lions,
elephant seals, and northern fur seals
are found on various haul-out sites and
rookeries on San Miguel Island (SMI).
Currently, six space launch vehicle
programs use VAFB to launch satellites
into polar orbit: Delta II; Taurus; Atlas
V; Delta IV; Falcon; and Minotaur. Also
a variety of small missiles, several types
of interceptor and target vehicles, and
fixed-wing aircrafts are launched from
VAFB.
The activities under these regulations
create two types of noise: continuous
(but short-duration) noise, due mostly to
combustion effects of aircraft and
launch vehicles, and impulsive noise,
due to sonic boom effects. Launch
operations are the major source of noise
on the marine environment from VAFB.
The operation of launch vehicle engines
produces significant sound levels. The
noise generated by VAFB activities may
result in the incidental harassment of
pinnipeds, both behaviorally and in
terms of physiological (auditory)
impacts. The noise and visual
disturbances from space launch vehicle
and missile launches and aircraft and
helicopter operations may cause the
animals to move towards or enter the

water. Take of pinnipeds will be
minimized through implementation of
the following mitigation measures: (1)
All aircraft and helicopter flight paths
must maintain a minimum distance of
1,000 ft (305 m) from recognized seal
haul-outs and rookeries; (2) missile and
rocket launches must, whenever
possible, not be conducted during the
harbor seal pupping season of March
through June; (3) VAFB must avoid,
whenever possible, launches which are
predicted to produce a sonic boom on
the Northern Channel Islands during the
primary pinniped pupping seasons of
March through June; and (4) monitoring
methods will be reviewed by NMFS if
post-launch surveys determine that an
injurious or lethal take of a marine
mammal occurred. VAFB will also use
monitoring surveys, audio-recording
equipment, and time-lapse video to
monitor the animals before, during, and
after rocket launches, and to measure
sound levels generated by the launches.
Reports will be submitted to NMFS after
each LOA expires, and a final
comprehensive report, which will
summarize all previous reports and
assess cumulative impacts, will be
submitted before the rule expires.
Summary of Request
On December 10, 2012, NMFS
received a request for a LOA renewal
pursuant to the aforementioned
regulations that would authorize, for a
period not to exceed 1 year, take of
marine mammals, by harassment,
incidental to space vehicle and test
flight activities at VAFB. Summary of
Activity and Monitoring Under the 2012
LOA
In compliance with the 2012 LOA,
VAFB submitted an annual report on
the activities at VAFB, covering the
period of December 1, 2011, through
November 30, 2012. A summary of the
2012 report (MMCG and SAIC, 2012)
follows.
During the reporting period covered
by the 2012 report, there were a total of
four launches from VAFB: two space
vehicle launches and two missile
launches. The dates, locations, and
whether or not monitoring was required
for the launches are summarized in
Table 1 next.
TABLE 1SUMMARY OF SPACE VEHICLE AND MISSILE LAUNCHES FROM VAFB IN 2012
Vehicle
Date
(2012)
Launch
site
Monitored
Minuteman III GT203GM .........................................

Delta IV NROL25 .....................................................
Atlas V NROL36 .......................................................
25Feb ............................
3Apr ...............................
13Sep ............................
LF10 ..............................
SLC6 .............................
SLC3E ...........................
No.
Yes (boom and time-lapse only).
Yes (boom and acoustics only).
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TABLE 1SUMMARY OF SPACE VEHICLE AND MISSILE LAUNCHES FROM VAFB IN 2012Continued
Vehicle
Date
(2012)
Launch
site
Minuteman III GT206GM .........................................
14Nov ............................
LF10 ..............................
The Delta IV launch occurred during

the harbor seal pupping season,
requiring monitoring on VAFB. Sonic
boom modeling was conducted for both
space vehicle launches. The modeling
indicated that a sonic boom of greater
than 1 lb/ft2 (psf) would occur at SMI
as a result of the Atlas V launch,
requiring acoustical and biological
monitoring.
Neither of the missile launches
required monitoring at SMI because the
westerly trajectory of these launches.
Similarly, both missile launches
occurred outside of the VAFB harbor
seal pupping season; therefore, no
biological or acoustical monitoring was
required or performed on VAFB for
these two launches.
During the reporting period, 651
fixed-wing aircraft and helicopter
operations were conducted from the
VAFB airfield. Most of these consisted
of training exercises involving touch
and goes. There were no observed
impacts to pinnipeds from these
activities.
Delta IV Launch (April 3, 2012)

Counts of harbor seals done between
March 26 and April 2, 2012, recorded
from 2 to 111 adult and sub-adult seals.
From 0 to 16 pups were observed, along
with one California sea lion. One dead
pup with wounds suggestive of a shark
attack washed ashore on March 26. The
next day, a dead, newly born pup with
its umbilicus still attached was noted at
one of the sites. Both sightings occurred
prior to the actual launch. Post-launch
counts ranged from 88 to 144 adult and
sub-adult seals and from 8 to 12 pups.
The 2-week follow-up count revealed up
to 154 adult and sub-adult harbor seals
and up to 25 pups.
Time-lapse video monitoring was
conducted of this launch. The footage
revealed that all 42 harbor seals hauled
out at the monitoring location (First
Ledge on south VAFB) were alerted by
the noise and moved rapidly toward the
sea. All but two scurried into the water.
Up to 10 animals soon returned but
went back in the ocean as the tide rose
(MSRS, 2012).
In summary, based on post-launch
analysis, there was no evidence of
injury, mortality, or abnormal behavior
in any of the monitored pinnipeds on
VAFB as a result of this launch.
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Atlas V Launch (September 13, 2012)

Biological monitoring for this launch
was required at SMI, since the sonic
boom models predicted overpressures in
excess of 1 psf there. Monitoring for this
launch was conducted at Cardwell
Point. California sea lions, northern
elephant seals, and Pacific harbor seals
were present during the pre- and postmonitoring counts and on the day of the
launch. No pups of any species were
observed at this location. Counts on the
days prior to the launch ranged from
209912 for California sea lions, from 0
101 for northern elephant seals, and
from 035 for harbor seals. On the day
of the launch, 186240 sea lions, 5078
northern elephant seals, and 036
harbor seals were sighted. The same or
higher numbers of sea lions and
northern elephant seals were seen on
the two days after the launch. No harbor
seals were seen the following day, likely
because of a very large surf with heavy
surges and backwashes, preventing
harbor seals from hauling out, although
they were present just outside the
breakers.
No reactions were noted on the part
of the sea lions and elephant seals to the
sonic boom. Of the 36 harbor seals
present at the time of the boom, 20
dashed into the water. They began
returning to shore within 30 min of the
launch.
Acoustic monitoring was also
conducted for this launch. The peak
unweighted sound level was 122.8 dB re
20 mPa. During the 15 min before and
the 15 min after the launch, the lowest
ambient noise was 82.7 dB re 20 mPa,
while the highest soundsnot
associated with the launchwere 113.1
dB re 20 mPa.
In summary, there was no evidence of
injury, mortality, or abnormal behavior
of the monitored pinnipeds on SMI as
a result of this launch.
Authorization
The USAF complied with the
requirements of the 2012 LOA, and
NMFS has determined that the marine
mammal take resulting from the 2012
launches is within that analyzed in and
anticipated by the associated
regulations. Accordingly, NMFS has
issued an LOA to the 30th Space Wing,
USAF, authorizing the take by
harassment of marine mammals
incidental to space vehicle and test
PO 00000
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Monitored
No.
flight activities at VAFB. Issuance of

this LOA is based on findings described
in the preamble to the final rule (74 FR
6236, February 6, 2009) and supported
by information contained in VAFBs
2012 annual report that the activities
described under this LOA will have a
negligible impact on marine mammal
stocks. The provision requiring that the
activity not have an unmitigable adverse
impact on the availability of the affected
species or stock for subsistence uses
does not apply for this action.
Helen M. Golde,
Acting Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 201302447 Filed 2413; 8:45 am]
BUREAU OF CONSUMER FINANCIAL

PROTECTION
Agency Information Collection
Activities: Submission for OMB
Review; Comment Request
Bureau of Consumer Financial
Protection.
ACTION: Notice and request for comment.
AGENCY:
The Bureau of Consumer

Financial Protection (Bureau or CFPB),
as part of its continuing effort to reduce
paperwork and respondent burden,
invites the general public and other
Federal agencies to take this
opportunity to comment on a proposed
information collection, as required by
the Paperwork Reduction Act of 1995
(PRA). The Bureau is soliciting
comments concerning its proposed
information collection titled,
Quantitative Testing of Integrated
Mortgage Loan Disclosure Forms. The
proposed collection has been submitted
to the Office of Management and Budget
(OMB) for review and approval. A copy
of the submission, including copies of
the proposed collection, may be
obtained by contacting the agency
contact listed below.
DATES: Written comments are
encouraged and must be received on or
before March 7, 2013 to be assured of
consideration.
SUMMARY:
You may submit comments,

identified by agency name and proposed
collection titleQuantitative Testing
ADDRESSES:
E:\FR\FM\05FEN1.SGM
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Federal Register / Vol. 78, No. 28 / Monday, February 11, 2013 / Rules and Regulations
Flooding source(s)
* Elevation in feet
(NGVD)
+ Elevation in feet
(NAVD)
# Depth in feet
above ground
Elevation in
meters (MSL)
modified
Location of referenced elevation
At the New York state boundary .........................................
Communities
affected
+982
* National Geodetic Vertical Datum.

+ North American Vertical Datum.
# Depth in feet above ground.
Mean Sea Level, rounded to the nearest 0.1 meter.
ADDRESSES
Borough of Great Bend
Maps are available for inspection at
Borough of Hallstead
Borough of Lanesboro
Borough of New Milford
Borough of Oakland
Borough of Susquehanna Depot
Township of Choconut
Township of Clifford
Township of Great Bend
Township of Harmony
Township of Lenox
Township of New Milford
Township of Oakland
the Borough Building, 81 Elizabeth Street, Great Bend, PA 18821.

the Municipal Building, 101 Franklin Avenue, Hallstead, PA 18822.
the Borough Hall, 418 Main Street, Lanesboro, PA 18827.
the Borough Office, 948 Main Street, Suite 1, New Milford, PA 18834.
the Oakland Borough Building, 15 Wilson Avenue, Susquehanna, PA 18847.
the Susquehanna Depot Borough Hall, 83 Erie Boulevard, Suite A, Susquehanna, PA 18847.
the Choconut Township Hall, 26499 State Route 267, Friendsville, PA 18818.
the Township Building, 119 Cemetery Street, Clifford, PA 18441.
the Great Bend Township Building, 33253 State Route 151, Susquehanna, PA 18847.
the Harmony Township Office, 4197 Starrucca Creek Road, Susquehanna, PA 18847.
the Lenox Township Municipal Building, 2811 State Route 92, Kingsley, PA 18826.
the Township Building, 19730 State Route 11, New Milford, PA 18834.
the Oakland Township Building, 36 Riverside Drive, Susquehanna, PA 18847.
(Catalog of Federal Domestic Assistance No.

97.022, Flood Insurance.)
FEDERAL COMMUNICATIONS
COMMISSION
James A. Walke,
Acting Deputy Associate Administrator for
Mitigation, Department of Homeland
Security, Federal Emergency Management
Agency.
47 CFR Part 25
[FR Doc. 201302946 Filed 2813; 8:45 am]

[IB Docket No. 07101; FCC 131]
Amendment of the Commissions

Rules To Allocate Spectrum and Adopt
Service Rules and Procedures To
Govern the Use of Vehicle-Mounted
Earth Stations in Certain Frequency
Bands Allocated to the Fixed-Satellite
Service
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the Federal

Communications Commission
(Commission) modifies its rules for
Vehicle-Mounted Earth Stations (VMES)
in order to promote greater flexibility for
VMES operators, which, in turn, should
enable the VMES industry to create
more spectrally-efficient broadband
erowe on DSK2VPTVN1PROD with RULES
SUMMARY:
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solutions in the Ku-band without

causing harmful interference to FixedSatellite Service (FSS) providers and
without exposing the general public to
harmful radiofrequency radiation.
DATES: Effective March 13, 2013.
Jennifer Balatan or Howard Griboff,
Policy Division, International Bureau,
(202) 4181460.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commissions Order on
Reconsideration, adopted on January 4,
2013, and released on January 8, 2013
(FCC 131). The full text of this
document is available for inspection
and copying during normal business
hours in the Commission Reference
Center, 445 12th Street SW.,
Washington, DC 20554. The document
is also available for download over the
Internet at http://hraunfoss.fcc.gov/
edocs_public/attachmatch/FCC-131A1.doc. The complete text may also be
purchased from the Commissions copy
E:\FR\FM\11FER1.SGM
11FER1
contractor, Best Copy and Printing, in

person at 445 12th Street SW., Room
CYB402, Washington, DC 20554, via
telephone at (202) 4885300, via
facsimile at (202) 4885563, or via email
at Commission@bcpiweb.com.
Summary of the Order on
Reconsideration
On June 30, 2009, the Commission
adopted the VMES Report and Order in
IB Docket No. 07101 (VMES Order) (74
FR 5709201, November 4, 2009, as
amended at 75 FR 128501, January 11,
2010), establishing licensing and service
rules for VMES operating in the 14.0
14.5 GHz/11.712.2 GHz (Ku-band)
frequencies. In this Order on
Reconsideration (Reconsideration
Order), the Commission addresses three
issues raised by the Petitioners with
respect the VMES rules that the
Commission adopted in the VMES
Order to protect Fixed-Satellite Service
(FSS) providers from harmful
interference and to protect the general
public from exposure to harmful
radiofrequency radiation. First, the
Reconsideration Order eases the
technical requirements for a certain type
of VMES systema variable powerdensity VMES systemincluding
modifying the off-axis effective
isotropically radiated power (EIRP)density provisions in section
25.226(a)(3) to enable these systems to
operate their terminals more efficiently
and effectively. Specifically, the
Reconsideration Order grants the
Petitioners requests to give variable
power-density VMES systems ALSAT
authority. The Reconsideration Order
also permits variable power-density
VMES systems to operate terminals with
varying levels of power-densities by
defining N equal to 1 for these systems
in the off-axis EIRP-density limits. The
Reconsideration Order declines the
Petitioners proposals to eliminate the
requirement for variable power-density
VMES systems to maintain powerdensity 1 dB below the off-axis EIRPdensity limits. Rather than eliminate the
1 dB requirement, the Reconsideration
Order concludes that VMES applicants
should request a waiver of the 1 dB
requirement in order to allow those
systems to improve spectral efficiency
without compromising the FSS
protection. VMES applicants that seek a
waiver of the 1 dB requirement must file
a report regarding their system
operations along with their waiver
request. The Reconsideration Order also
requires variable power-density VMES
to cease or reduce transmissions if those
VMES exceed the power-density limits
for variable power-density systems.
Second, the Reconsideration Order
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14:06 Feb 08, 2013
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declines ViaSats request to clarify the

antenna pointing error provisions in the
VMES rules. Third, the Reconsideration
Order adopts ViaSats proposal, in part,
to relax the cessation of emission
requirement in section 25.226(a)(9), a
rule that is designed to minimize human
exposure to radiofrequency radiation.
The revisions should promote
operational flexibility and spectral
efficiency in the Ku-band. At the same
time, these revisions should continue to
ensure that the VMES operators protect
the FSS operators from harmful
interference and protect the general
public from harmful exposure to
radiofrequency radiation.
Final Regulatory Flexibility
CertificationReconsideration Order
The Regulatory Flexibility Act of
1980, as amended (RFA), requires that a
regulatory flexibility analysis be
prepared for notice-and-comment rule
making proceedings, unless the agency
certifies that the rule will not, if
promulgated, have a significant
number of small entities. The RFA
generally defines the term small
entity as having the same meaning as
the terms small business, small
organization, and small governmental
jurisdiction. In addition, the term
small business has the same meaning
as the term small business concern
under the Small Business Act. A small
business concern is one which: (1) Is
independently owned and operated; (2)
is not dominant in its field of operation;
and (3) satisfies any additional criteria
established by the U.S. Small Business
Administration (SBA). In light of the
rules adopted in the VMES Order, we
find that there are only two categories
of licensees that would be affected by
the new rules. These categories of
licensees are Satellite
Telecommunications and Fixed-Satellite
Transmit/Receive Earth Stations. The
SBA has determined that the small
business size standard for Satellite
Telecommunications is a business that
has $15 million or less in average
annual receipts. Commission records
reveal that there are 20 space station
licensees and operators in the Ku-band.
We do not request or collect annual
revenue information concerning such
licensees and operators, and thus are
unable to estimate the number of
geostationary space station licensees
and operators that would constitute a
small business under the SBA definition
cited above, or apply any rules
providing special consideration for
geostationary space station licensees
and operators that are small businesses.
Currently there are approximately 2,879
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Frm 00029
Fmt 4700
Sfmt 4700
9603
operational fixed-satellite transmit/

received earth stations authorized for
use in the Ku-band. The Commission
does not request or collect annual
revenue information, and thus is unable
to estimate the number of earth stations
that would constitute a small business
under the SBA definition. Of the two
classifications of licensees, we estimate
that only 10 entities will provide VMES
service. For the reasons described
below, we certify that the policies and
rules adopted in this Reconsideration
Order will not have a significant
number of small entities.
In the VMES Order, the Commission
adopted domestic U.S. allocation,
service and licensing rules (VMES rules)
that allow VMES to operate in the
conventional and extended Ku-band
frequencies while adhering to the
Commissions two-degree satellite
spacing interference avoidance
requirements of the Ku-band FSS. The
conventional Ku-band refers to
frequencies in the 11.712.2 GHz
(downlink) and 14.014.5 GHz (uplink)
bands and the covered extended Kuband includes the 10.9511.2 GHz and
11.4511.7 GHz (downlink) bands. The
VMES rules enable the VMES to operate
as a primary application of the FSS in
the conventional bands. In the extended
band frequencies, VMES may be
authorized to communicate with
geostationary satellite orbit FSS space
stations but must accept interference
from stations of the Fixed Service (FS)
operating in accordance with the
Commissions rules. The VMES rules
promote spectrum sharing with certain
secondary incumbent services in the
uplink bands, including government
space research service and radio
astronomy service.
The Commission does not expect
small entities to incur significant costs
associated with the changes adopted in
this Reconsideration Order. The changes
will benefit both large and small entities
by allowing greater operational
flexibility in providing VMES service.
We believe these requirements are
nominal and do not impose a significant
economic impact on small entities.
Therefore, we certify that the
requirements adopted in this
Reconsideration Order will not have a
significant economic impact on a
substantial number of small entities.
Final Paperwork Reduction Act of 1995
AnalysisReconsideration Order
This Reconsideration Order does not
contain new or modified information
collection requirements subject to the
Paperwork Reduction Act of 1995
(PRA), Public Law 10413. In addition,
E:\FR\FM\11FER1.SGM
11FER1
9604
therefore, it does not contain any new

or modified information collection
burden for small business concerns with
fewer than 25 employees, pursuant to
the Small Business Paperwork Relief
Act of 2002, Public Law 107198, see 44
U.S.C. 3506(c)(4). The Commission will
send a copy of this Reconsideration
Order to Congress and the Government
Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
Ordering Clauses
It is ordered that, pursuant to Sections
4(i), 7, 302, 303(c), 303(e), 303(f) and
303(r) of the Communications Act of
1934, as amended, 47 U.S.C. 154(i), 157,
302, 303(c), 303(e), 303(f) and 303(r),
this Order on Reconsideration is
adopted. Part 25 of the Commissions
Rules is amended March 13, 2013.
It is further ordered that the Petition
for Reconsideration filed by The Boeing
Company is granted in part to the extent
described above and is denied in all
other respects.
It is further ordered that the Petition
for Reconsideration filed by ViaSat, Inc.
is granted in part to the extent described
above and is denied in all other
respects.
It is further ordered that the Final
Regulatory Flexibility Certification, as
required by Section 604 of the
Regulatory Flexibility Act, is adopted.
It is further ordered that the
Commissions Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Order on Reconsideration including
the Final Regulatory Flexibility
Certification, to the Chief Counsel for
Advocacy of the Small Business
Administration.
The Commission will send a copy of
this Order on Reconsideration in a
report to be sent to Congress and the
Government Accountability Office
pursuant to the Congressional Review
Act, see 5 U.S.C. 801(a)(1)(A).
List of Subjects in 47 CFR Part 25
Satellites.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
For the reasons discussed above, the
Federal Communications Commission
amends 47 CFR part 25 as follows:
PART 25SATELLITE
COMMUNICATIONS
1. The authority citation for part 25
continues to read as follows:
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14:06 Feb 08, 2013
Jkt 229001
Authority: 47 U.S.C. 701744. Interprets or

applies Sections 4, 301, 302, 303, 307, 309
and 332 of the Communications Act, as
amended, 47 U.S.C. Sections 154, 301, 302,
303, 307, 309, 332, unless otherwise noted.
2. Amend Section 25.226 as follows:

a. Revise the introductory text of
paragraphs (a)(1)(ii) and (iii);
b. Revise paragraph (a)(3)(i);
c. Remove paragraph (a)(3)(iii);
d. Revise paragraph (a)(9);
e. Revise paragraph (b)(3)(i);
f. Remove paragraph (b)(3)(iii);
g. Revise the last sentence of
paragraph (b)(8); and
h. Add paragraph (b)(9).
The revisions and addition read as
follows:
25.226 Blanket Licensing provisions for

domestic, U.S. Vehicle-Mounted Earth
Stations (VMESs) receiving in the 10.95
11.2 GHz (space-to-Earth), 11.4511.7 GHz
(space-to-Earth), and 11.712.2 GHz (spaceto-Earth) frequency bands and transmitting
in the 14.014.5 GHz (Earth-to-space)
frequency band, operating with
Geostationary Satellites in the FixedSatellite Service
(a) * * *
(1) * * *
(ii) Except for VMES systems
operating under paragraph (a)(3), each
VMES transmitter must meet one of the
following antenna pointing error
requirements:
*
*
*
*
*
(iii) Except for VMES systems
operating under paragraph (a)(3), each
VMES transmitter must meet of one the
following cessation of emission
requirements:
*
*
*
*
*
(3) * * *
(i) The effective aggregate EIRPdensity from all terminals shall be at
least 1 dB below the off-axis EIRPdensity limits defined in paragraph
(a)(1)(i) of this section, with the value of
N=1. In this context the term effective
means that the resultant co-polarized
and cross-polarized EIRP-density
experienced by any GSO or non-GSO
satellite shall not exceed that produced
by a single transmitter operating 1 dB
below the limits defined in paragraph
(a)(1)(i) of this section. The individual
VMES transmitter shall automatically
cease emissions within 100
milliseconds if the VMES transmitter
exceeds the off-axis EIRP-density limits
minus 1 dB specified above. If one or
more VMES transmitters causes the
aggregate off-axis EIRP-densities to
exceed the off-axis EIRP-density limits
minus 1 dB specified above, then the
transmitter or transmitters shall cease or
reduce emissions within 100
milliseconds of receiving a command
PO 00000
Frm 00030
Fmt 4700
Sfmt 9990
from the systems network control and

monitoring center. A VMES system
operating under this subsection shall
provide a detailed demonstration as
described in paragraph (b)(3)(i) of this
section.
*
*
*
*
*
(9) Each VMES terminal shall
automatically cease transmitting upon
the loss of synchronization or within 5
seconds upon loss of reception of the
satellite downlink signal, whichever is
the shorter timeframe.
(b) * * *
(3) * * *
(i) The applicant shall make a detailed
showing of the measures it intends to
employ to maintain the effective
aggregate EIRP-density from all
simultaneously transmitting cofrequency terminals operating with the
same satellite transponder at least 1 dB
below the off-axis EIRP-density limits
defined in paragraphs (a)(1)(i)(A)
through (C) of this section. In this
context the term effective means that
the resultant co-polarized and crosspolarized EIRP-density experienced by
any GSO or non-GSO satellite shall not
exceed that produced by a single VMES
transmitter operating at 1 dB below the
limits defined in paragraphs (a)(1)(i)(A)
through (C) of this section. The
applicant also must demonstrate that an
individual transmitter and the entire
VMES system is capable of
automatically ceasing emissions within
100 milliseconds if the aggregate off-axis
EIRP-densities exceed the off-axis EIRPdensity limits minus 1 dB, as set forth
in paragraph (a)(3)(i) of this section. The
International Bureau will place this
showing on public notice along with the
application.
*
*
*
*
*
(8) * * *. All VMES applicants shall
demonstrate that their VMES terminals
are capable of automatically ceasing
transmissions upon the loss of
synchronization or within 5 seconds
upon loss of reception of the satellite
downlink signal, whichever is the
shorter timeframe.
(9) Except for VMES systems
operating pursuant to paragraphs (a)(2)
and (a)(3)(ii) of this section, VMES
systems authorized pursuant to this
section shall be eligible for a license that
lists ALSAT as an authorized point of
communication.
*
*
*
*
*
[FR Doc. 201303020 Filed 2813; 8:45 am]
E:\FR\FM\11FER1.SGM
11FER1
COMMISSION
47 CFR Parts 25 and 27
[WT Docket No. 07293; IB Docket No. 95
91; FCC 12130]
Operation of Wireless
Communications Services in the 2.3
GHz Band; Establishment of Rules and
Policies for the Digital Audio Radio
Satellite Service in the 23102360 MHz
Frequency Band
Commission.
ACTION: Final rule.
AGENCY:
In this document, the

Commission affirms, modifies, and
clarifies its actions in response to
various petitions for reconsideration
and/or clarification. The revised rules
are intended to enable Wireless
Communications Service (WCS)
licensees to deploy broadband services
in the 23052320 MHz and 23452360
MHz (2.3 GHz) WCS bands while
continuing to protect Satellite Digital
Audio Radio Service (SDARS) operator
Sirius XM Radio Inc. (Sirius XM) and
aeronautical mobile telemetry (AMT)
operations in adjacent bands and the
deep space network (DSN) earth station
in Goldstone, California from harmful
interference. In addition, the revised
rules will facilitate the flexible
deployment and operation of SDARS
terrestrial repeaters in the 23202345
MHz SDARS band, while protecting
adjacent bands WCS licensees from
harmful interference.
DATES: Effective March 13, 2013, except
for 25.263(b), 27.72(b), and 27.73(a),
which contain information collection
requirements that are not effective until
approved by the Office of Management
and Budget. The Commission will
publish a document in the Federal
Register announcing the effective dates
for those sections. The Director of the
Federal Register will approve the
incorporation by reference in 27.73(a)
concurrently with the published office
of Management and Budget approval of
this section.
WCS technical information: Moslem
Sawez, Moslem.Sawez@fcc.gov,
Mobility Division, Wireless
Telecommunications Bureau, (202) 418
8211. WCS legal information: Linda
Chang, Linda.Chang@fcc.gov Mobility
Division, Wireless Telecommunications
Bureau, (202) 4181339. SDARS
technical information: Chip Fleming,
Chip.Fleming@fcc.gov, Engineering
Branch, Satellite Division, International
Bureau, (202) 4181247. SDARS legal
SUMMARY:
VerDate Mar<15>2010
14:06 Feb 08, 2013
Jkt 229001
information: Stephen Duall,

Stephen.Duall@fcc.gov, Policy Branch,
Satellite Division, International Bureau,
(202) 4181103. For additional
information concerning the Paperwork
Reduction Act information collection
requirements contained in this
document, contact Linda Chang at (202)
4181339, or via the Internet at
Linda.Chang@fcc.gov and Stephen Duall
at (202) 4181103, or via the Internet at
Stephen.Duall@fcc.gov.
summary of the Commissions Order on
Reconsideration in WT Docket No. 07
293 and IB Docket No. 9591, FCC 12
130, adopted and released October 17,
2012. The full text of this document is
available on the Commissions Internet
site at www.fcc.gov. It is also available
for inspection and copying during
regular business hours in the FCC
Reference Center (Room CYA257), 445
12th Street, SW., Washington, DC
20554. The Order on Reconsideration
also may be purchased from the
Commissions duplication contractor,
Best Copy and Printing Inc., Portals II,
445 12th St. SW., Room CYB402,
Washington, DC 20554; telephone (202)
4885300; fax (202) 4885563; email
FCC@BCPIWEB.COM.
Summary
I. Introduction and Executive Summary
1. The Order on Reconsideration in
WT Docket No. 07293 and IB Docket
No. 9591 addressed five petitions for
reconsideration of the 2010 WCS R&O
and SDARS 2nd R&O, 75 FR 45058,
August 2, 2010, filed by ARRL, the
national association for Amateur Radio
(ARRL), AT&T Inc. (AT&T), Sirius XM,
Stratos Offshore Services Company
(Stratos), and the WCS Coalition. The
2010 WCS R&O modified the technical
rules and performance (i.e., buildout)
requirements for the WCS in the 2305
2320 MHz and 23452360 MHz bands;
the SDARS 2nd R&O established
technical and licensing rules for SDARS
terrestrial repeaters in the 23202345
MHz band. The petitions sought
reconsideration, clarification, or both of
the Commissions decisions in the 2010
WCS R&O and SDARS 2nd R&O
regarding: (a) WCS base and fixed
stations ground level emissions limit,
(b) fixed WCS customer premises
equipment (CPE) power and power
spectral density (PSD) limits, bands of
operation, and outdoor antenna use, (c)
distinction between fixed WCS CPE and
fixed WCS point-to-point stations, (d)
mobile and portable devices PSD and
out-of-band emissions (OOBE) limits, (e)
restrictions on WCS frequency division
duplexing (FDD) mobile and portable
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
9605
devices bands of operation, (f) WCS

mobile and portable devices and fixed
WCS CPE duty cycle limits, (g) WCS
protection of Amateur Radio Service
(ARS) operations and WCS base/fixed
stations and mobile devices OOBE
limits in the 23002305 MHz band, (h)
WCS coordination, notification, and
interference mitigation requirements;
base station separation distance, (i) WCS
performance requirements, (j) WCS/
SDARS coordination zones, (k)
interference protection for WCS from
SDARS terrestrial repeaters, and (l) WCS
and SDARS licensees duty to cooperate
in sharing information and preventing/
mitigating interference. The revised
rules are consistent with a June 15, 2012
compromise proposal between WCS
licensee AT&T Inc. and Sirius XM
designed to facilitate the efficient
deployment and coexistence of the WCS
and SDARS.
2. For the WCS, the Order on
Reconsideration
Established maximum design
ground power level targets on roadways
for WCS base and fixed station
operations of 44 dBm in WCS Blocks
A (23052310 MHz and 23502355
MHz) and B (23102315 MHz and 2355
2360 MHz) and 55 dBm in WCS Blocks
C (23152320 MHz) and D (23452350
MHz) to serve as triggers for interference
resolution if exceeded on roadways and
harmful interference (i.e., muting) to
SDARS operations occurs;
Established conditions on roadways
constituting harmful interference to
SDARS operations from WCS operations
requiring WCS and SDARS operators to
work cooperatively to resolve;
Denied a petition to establish a
specific distance at which an SDARS
subscriber is expected to tolerate muting
of SDARS signals by WCS base station
transmitters;
Eliminated the frequency band
restrictions on WCS FDD base stations
prohibiting transmissions in the lower
WCS blocks (23052320 MHz);
Clarified that point-to-point and
point-to-multipoint WCS fixed stations
operated and controlled by the WCS
licensee and that comply with the WCS
base and fixed station power and
emissions limits are not considered to
be fixed WCS CPE;
Denied a petition to establish
reduced power limits for low-power
fixed WCS CPE (i.e., CPE with average
equivalent isotropically radiated power
(EIRP) of 2 Watts or less) operating with
the relaxed OOBE limits applicable to
WCS mobile and portable devices;
Denied a petition to establish PSD
limits for all fixed WCS CPE;
E:\FR\FM\11FER1.SGM
11FER1
9606
Denied a petition to establish guard

bands in WCS Blocks C and D for fixed
WCS CPE;
Relaxed the restrictions on outdoor
and outdoor antenna use for low-power
fixed WCS CPE operating with the
OOBE limits applicable to WCS mobile
and portable devices under certain
circumstances;
Removed the restrictions on
outdoor and outdoor antenna use for
low-power fixed CPE operating with the
more restrictive OOBE limits applicable
to WCS base and fixed stations;
Eliminated the PSD limits for WCS
mobile and portable devices using
appropriate uplink (user device to base
station) transmission technology (e.g.,
3rd Generation Partnership Project Long
Term Evolution (3GPP LTE);
Denied a petition requesting further
restrictions on WCS mobile and portable
device OOBE limits;
Denied a petition requesting
removal of the restriction prohibiting
WCS mobile and portable devices using
FDD technology from transmitting in the
upper WCS spectrum blocks (23452360
MHz) adjacent to the AMT spectrum;
Prohibited WCS mobile and
portable devices from transmitting in all
portions of WCS Blocks C (23152320
MHz) and D (23452350 MHz);
Eliminated the duty cycle limits on
fixed WCS CPE and WCS mobile and
portable devices using FDD technology;
Denied a petition to eliminate the
38 percent duty cycle limit for fixed
WCS CPE and WCS mobile and portable
devices using time division duplexing
(TDD) technology;
Clarified the bands of applicability
for WCS base, fixed, and fixed CPE
station, and WCS mobile and portable
device OOBE limits;
Declined to address a petition
regarding the interference protection
rights of secondary Amateur Radio
Service operations in the 23002305
MHz band adjacent to primary WCS
operations in the 23052320 MHz band;
Exempted low-power WCS stations
(EIRP less than 2 Watts) from the WCS
licensee notification requirements and
relaxed the WCS licensee notification
requirements for minor WCS station
modifications;
Clarified that WCS fixed stations
are part of the WCS licensee
coordination and notification processes;
Lengthened by 6 months and
restarted the WCS construction periods
to enable WCS licensees to respond to
the rule revisions;
Denied petitions to eliminate the
automatic WCS license forfeiture
provisions for failure to comply with the
WCS performance requirements;
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14:06 Feb 08, 2013
Jkt 229001
Denied petitions to replace the

coverage-based performance
requirements for WCS Blocks C (2315
2320 MHz) and D (23452350 MHz)
with substantial service requirements;
Encouraged WCS licensees to enter
into coordination agreements with
SDARS licensees for interference
mitigation.
3. For the SDARS, the Order on
Reconsideration
Denied a petition to modify the siteby-site licensing procedures for high
power SDARS terrestrial repeaters that
are not eligible for blanket licensing
(e.g., repeaters with average EIRP greater
than 12 kilowatts (kW));
Maintained the option to authorize
SDARS terrestrial repeaters that are not
eligible for blanket licensing;
Modified the definition of which
WCS licensees would be potentially
affected by SDARS terrestrial repeaters
operating with high power or relaxed
OOBE limits;
Excepted low-power terrestrial
repeaters (i.e., repeaters with EIRP less
than 2 Watts) from SDARS licensee
notification requirements;
Relaxed SDARS licensee
notification requirements for minor
modifications to SDARS terrestrial
repeaters;
Encouraged SDARS licensees to
enter into coordination agreements with
WCS licensees for interference
mitigation.
II. Order on Reconsideration in WT
Docket No. 07293
A. WCS Base and Fixed Stations
4. Emissions and Circumstances
Requiring Coordination to Resolve
Interference. To foster deployment of
innovative broadband services in the
WCS spectrum and further mitigate the
risk of harmful interference to SDARS
operations, the Order on
Reconsideration adopted AT&Ts and
Sirius XMs proposed roadway signal
levels and harmful interference
conditions to SDARS operations on
roadways which would trigger
coordinated efforts between WCS and
SDARS licensees to mitigate the
interference. Specifically, WCS and
SDARS operators would work
cooperatively to resolve harmful
interference in a location where a WCS
signal level is present on a roadway at
a level greater than 44 dBm in the
WCS A or B Blocks, or 55 dBm in the
WCS C or D Blocks, and a test
demonstrates that the SDARS customer
would be muted over a road distance of
greater than 50 meters; or for a mutually
agreeable drive test route, if the ground
signal level on roadways exceeds 44
PO 00000
Frm 00032
Fmt 4700
Sfmt 4700
dBm in the WCS A or B Blocks, or 55

dBm in the WCS C or D Blocks, for more
than 1 percent of the cumulative surface
road distance on that drive route, and a
test demonstrates that the SDARS
customer would be muted over a
cumulative road distance of greater than
12 of 1 percent (incremental to any
muting present prior to use of WCS
frequencies in the area of that drive
test). The Order on Reconsideration
denied Sirius XMs petition to establish
a specific separation distance at which
an SDARS subscriber is expected to
tolerate muting by WCS base station
operations.
5. Bands of Operation. To provide
WCS licensees with more flexibility to
enhance service to the public and
support FDD downlink carrier
aggregation, in response to AT&Ts
request in its petition for
reconsideration and consistent with
AT&Ts and Sirius XMs request in their
June 15, 2012 joint submission, the
Commission decided in the Order on
Reconsideration that WCS FDD base
stations may also transmit in the lower
WCS blocks at 23052320 MHz in
addition to operating in the upper WCS
bands at 23452360 MHz, subject to the
power and OOBE attenuation factors
adopted for WCS base station operations
in those bands. The Commission agreed
with AT&T and Sirius XM that such
operations would not increase the
potential for harmful interference to
adjacent-band services and there is no
need to restrict their operation to the
upper WCS bands (23452360 MHz).
6. Point-To-Point/Point-To-Multipoint
Station Description Clarification. In the
Order on Reconsideration, the
Commission agreed with Stratos and the
WCS Coalition that fixed WCS point-topoint stations that are controlled and
operated by the WCS licensee and
comply with the power levels and
spectral mask (i.e., OOBE limits)
applicable to WCS base and fixed
stations are not considered to be fixed
WCS CPE, regardless of where the
transmission equipment is installed. In
addition, because fixed WCS CPE
stations operations commenced several
years before the Commission adopted
the 2010 WCS R&O in May 2010, and
the Commission has not received
reports of harmful interference to
SDARS receivers due to their operation,
the Commission decided that testing of
all potential fixed WCS CPE
applications, as suggested by Sirius XM,
was not needed to clarify that fixed
WCS point-to-point and point-tomultipoint stations that are controlled
and operated by the WCS licensee and
comply with the power levels and
spectral mask applicable to WCS base
E:\FR\FM\11FER1.SGM
11FER1
and fixed stations are not considered to

be fixed WCS CPE. Therefore, the Order
on Reconsideration clarified that fixed
WCS fixed WCS point-to-point stations
and point-to-multipoint stations that are
controlled and operated by the WCS
licensee and that comply with the more
restrictive OOBE attenuation factors
applicable to WCS base and fixed
stations are not considered to be fixed
WCS CPE, regardless of where the
equipment is installed.
B. Fixed WCS Customer Premises
Equipment
7. Power and Power Spectral Density
Limits. The signal attenuation from the
propagation losses due to the likely
separation distances between low-power
fixed WCS CPE and SDARS receivers,
coupled with the requirement to employ
automatic transmit power control
(ATPC), which is used to prevent intercell interference (i.e., interference to
adjacent cells base stations receiving on
the same frequencies), will help limit
the potential for harmful interference
(i.e., interference which seriously
degrades, obstructs, or repeatedly
interrupts a radiocommunication
service) from fixed WCS CPE to SDARS
receivers receiving unwanted energy in
the adjacent band. Thus, the
Commission disagreed with Sirius XM
that low-power fixed WCS CPE
operating with the OOBE attenuation
factors applicable to WCS mobile
devices should be restricted to a
maximum EIRP of 250 mW. In addition,
although most 2.3 GHz-band fixed WCS
CPE devices have been authorized for
and are operating at 1 to 2 W EIRP, and
some fixed WCS CPE devices have been
authorized for and are operating at up
to 20 W EIRP, which occurred before we
relaxed the OOBE limits for fixed WCS
CPE, SDARS licensees have not reported
any instances of harmful interference
due to this fixed WCS CPE. For these
reasons, the Commission decided that
maintaining the average EIRP at 2 W or
less for low-power fixed WCS CPE
operating with the same OOBE limits as
WCS mobile and portable devices will
not result in harmful interference to
SDARS receivers. Therefore, the Order
on Reconsideration declined to restrict
the maximum allowed power of lowpower fixed WCS CPE operating with
the same OOBE limits as WCS mobile
and portable devices to 250 mW, and
denied that portion of Sirius XMs
petition.
8. Furthermore, because imposition of
a PSD limit on fixed WCS CPE would
likely preclude the provision of fixed
WCS services by making it
uneconomical to provide the necessary
base station coverage, the Commission
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also declined to impose a PSD limit of

4 W/MHz on fixed WCS CPE, as
requested by Sirius XM. In support of
this decision, the Commission noted
that the 2010 WCS R&O significantly
reduced the potential for fixed WCS
CPE to cause harmful interference to
SDARS receivers by reducing the
maximum allowed EIRP for these
devices from 2 kW over any bandwidth
to 20 W/5 MHz and that Sirius XM had
previously claimed that its receivers,
which were designed prior to adoption
of the 2010 WCS R&O, provide excellent
adjacent band blocking performance. In
addition, because of the likely sources
of blockagesfoliage, building walls,
parked and moving vehicles, etc.that
will attenuate fixed WCS CPE devices
signals, if fixed WCS CPE were allowed
to continue using up to 20 W/5 MHz
peak EIRP without a specific permegahertz PSD limit, the Commission
determined that SDARS licensees are
not likely to experience harmful
interference from the operation of these
devices. The Commission also affirmed
that if WCS licensees were to aggregate
spectrum for fixed WCS CPE, the power
level in any 5-megahertz bandwidth
would not be permitted to exceed 20 W.
9. The Commission further noted that
the technologies that are being
considered to provide WCS service
Long Term Evolution (LTE), Worldwide
Interoperability for Microwave Access
(WiMAX), and Wideband-Code Division
Multiple Access (WCDMA)spread
user devices signals across the channel
bandwidth and control the power of the
RF subcarriers assigned to a particular
device to prevent self-interference.
Thus, even absent a specific PSD limit
for fixed WCS CPE, the Commission
determined that WCS licensees efforts
to prevent self-interference would
effectively limit the PSD of fixed WCS
CPE and further mitigate the potential
for harmful interference to SDARS
receivers. Finally, because wireless
networks are typically initially designed
for coverage and subsequently for
capacity, the size of WCS cell sites is
likely to decrease over time, which will
decrease the maximum power
transmitted by WCS CPE and ultimately
lower these devices resultant PSD. For
these reasons, the Order on
Reconsideration denied Sirius XMs
request to impose a PSD limit of 4 W/
MHz on fixed WCS CPE.
10. Bands of Operation. Sirius XMs
petition regarding the establishment of
guard bands for fixed WCS CPE in the
2.5-megahertz portions of WCS Blocks C
and D nearest the SDARS band (i.e.,
2317.5 MHz2320 MHz and 2345
2347.5 MHz) asserted arguments that
Sirius XM raisedand the Commission
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9607
considered and rejectedin the 2010

WCS R&O. The Commission declined to
revisit those contentions in the Order on
Reconsideration. Sirius XM failed to
present any new evidence that would
compel the Commission to reconsider
its previous findings. Moreover, it is
settled Commission policy that
petitions for reconsideration are not to
be used for the mere re-argument of
points previously advanced and
rejected. Thus, the Order on
Reconsideration denied that portion of
Sirius XMs petition.
11. Outdoor and Outdoor Antenna
Use. In response to AT&Ts and the
WCS Coalitions petitions for
reconsideration, the Commission
decided in the Order on
Reconsideration to remove the
restrictions on low-power fixed WCS
CPE operating with the stepped
emission mask applicable to WCS
mobile devices that prohibited such
equipment from being used outdoors or
with outdoor antennas. Consistent with
the request in AT&Ts and Sirius XMs
June 15, 2012 compromise proposal, if
low-power fixed WCS CPE operating
with the OOBE limits applicable to WCS
mobile devices is professionally
installed in locations that are removed
by 20 meters from roadways or in
locations where it can be shown that the
ground power level of 44 dBm in
WCS Blocks A and B or 55 dBm in
WCS Blocks C and D will not be
exceeded at the nearest road location,
then such equipment may be used
outdoors and with outdoor antennas.
The Commission also decided to remove
the prohibitions on the use of lowpower fixed WCS CPE outdoors and
with outdoor antennas if the fixed WCS
CPE complies with the more restrictive
OOBE attenuation factors applicable to
WCS base and fixed stations. The
Commission determined that if used
outdoors or with outdoor antennas, lowpower fixed WCS CPE that is
professionally installed or that meets
the more restrictive OOBE attenuation
factors applicable to WCS base and
fixed stations will avert the
discontinuance of existing WCS service,
foster the provision of wireless
broadband services, especially in
unserved and underserved areas, and
enhance user experience without
causing harmful interference to SDARS
receivers. It also determined that the
signal attenuation due to the separation
distances and outdoor blockages (i.e.,
building walls and other structures in
urban settings; trees) that are likely to
exist between low-power fixed WCS
CPE transmitters and SDARS receivers
and the requirement to use ATPC,
E:\FR\FM\11FER1.SGM
11FER1
9608
would help limit the potential for

harmful interference to SDARS receivers
from low-power fixed WCS CPE being
used outdoors or with outdoor antennas.
C. WCS Mobile and Portable Devices
12. Power Spectral Density Limit. In
response to AT&Ts and the WCS
Coalitions petitions for reconsideration
and consistent with the request in
AT&Ts and Sirius XMs June 15, 2012
compromise proposal, in the Order on
Reconsideration, the Commission
decided to eliminate the PSD limit for
WCS mobile devices that operate with
bandwidths greater than or equal to 5
megahertz in WCS Blocks A and B and
use an appropriate uplink transmission
technology (e.g., 3GPP LTE). In support
of this decision, the Commission noted
that in cellular systems, mobile device
transmit (i.e., uplink) power control is a
key radio resource management
function for improving system capacity,
coverage, and user quality (data rate or
voice quality), lowering battery
consumption, and controlling
interference to adjacent cells of the same
system, and per-megahertz PSD limits
are not standardized for wideband
wireless technologies such as W
CDMA, WiMAX, or LTE. Instead of
controlling mobile devices transmit
power on a per-megahertz basis, LTE
technology is designed to control mobile
devices transmit power by dynamically
allocating spectrum resources, known as
Physical Resource Blocks (PRBs), among
mobile devices and setting the power
levels of these PRBs on a frame-by-frame
basis. Similarly, despite having different
uplink physical layer and transmission
schemes, WiMAX technology controls
mobile devices transmit power by
uniformly distributing the uplink
transmissions from a given mobile
device across the operating channel
bandwidth and controlling the power of
the radio frequency (RF) subcarriers
assigned to a particular device. In
Wideband Code Division Multiple
Access (WCDMA), also known as
Universal Mobile Telecommunication
System (UMTS), networks, to balance
the power received at the base station
from all mobile devices to within a few
decibels (dB) and optimize system
performance, uplink power control
information is transmitted from the base
station in every time slot to control the
power transmitted in each data channel
frame assigned to a particular mobile
device.
13. Therefore, in the same manner
that uplink power control is used in
LTE, WiMAX, and WCDMA networks
to optimize system performance, the
Commission found that WCS licensees
may use LTE, WiMAX, and WCDMA
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technologies uplink power control

algorithms to effectively limit the PSD
of WCS mobile devices to avoid selfinterference, maximize the capacity and
efficiency of the network, and mitigate
the risk that these devices will cause
harmful interference to SDARS
receivers. Although the PSD of WCS
mobile devices may occasionally exceed
50 mW/MHz, the Commission
concluded that such instances would be
rare and short lived. It also concluded
that WCS licensees could control WCS
mobile devices transmitter power via
power control, signal spreading, and/or
other signal modulation techniques to
prevent these devices from
concentrating power greater than 50
mW/MHz in narrow segments of
bandwidth that are near the SDARS
band to avoid causing harmful
interference to SDARS receivers.
14. For these reasons, the Order on
Reconsideration eliminated the 50 mW/
MHz PSD limit for WCS mobile devices
that operate in the WCS A and B Blocks
(23052315 MHz and 23502360 MHz)
and employ single carrier frequencydivision multiple access (SC FDMA) or
similar technology. However, to address
Sirius XMs concerns that WCS
licensees mobile devices could transmit
more power than they could otherwise
transmit in a 5-megahertz block by
aggregating spectrum blocks and
consistent with the WCS Coalitions
assertion that a WiMAX or LTE mobile
devices transmit power is uniformly
distributed across the available channel
bandwidth, the Order on
Reconsideration clarified that WCS
mobile devices are limited to a
maximum EIRP of 250 mW for any
bandwidth greater than or equal to 5
megahertz.
15. Out-of-Band Emissions Limits.
Sirius XMs petition regarding the
OOBE limits for WCS mobile devices in
the 23202345 MHz SDARS band
asserted numerous arguments that
Sirius XM raisedand the Commission
considered and rejectedin the 2010
WCS R&O. The Commission declined to
revisit those contentions in the Order on
Reconsideration. Sirius XM failed to
present any new evidence that would
compel the Commission to reconsider
its previous findings. Moreover, it is
settled Commission policy that
petitions for reconsideration are not to
be used for the mere re-argument of
points previously advanced and
rejected. Thus, the Order on
Reconsideration denied the portion of
Sirius XMs petition to further restrict
the OOBE limits for WCS mobile and
portable devices in the 23202345 MHz
band.
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16. Bands of Operation. The

Commission declined to remove the
restriction that WCS mobile devices
using FDD technology may not transmit
in the upper WCS A and B Blocks and
the 2.5-megahertz portion of the WCS D
Block furthest removed from the SDARS
band (2347.52360 MHz), as requested
by AT&T. The Commission determined
that restricting WCS FDD mobile
devices from transmitting in the upper
WCS blocks at 2347.52360 MHz band
would provide added protection from
harmful interference to adjacent-band
AMT receivers that operate in the 2360
2395 MHz band. Therefore, the Order on
Reconsideration denied the portion of
AT&Ts petition requesting that WCS
mobile devices be allowed to operate in
the upper WCS bands at 2347.52360
MHz.
17. However, although the
Commission determined in the 2010
WCS R&O that the potential for harmful
interference to SDARS receivers from
mobile transmitters operating in the 2.5megahertz portions of WCS Blocks C
and D furthest removed from the SDARS
band was negligible, in their June 15,
2012 joint agreement, AT&T and Sirius
XM asserted that mobile operations in
WCS Blocks C and D hold the most
potential to cause harmful interference
to satellite radio consumers. In their
June 15, 2012 compromise proposal,
AT&T and Sirius XM agreed that
expanding the guard bands for WCS
mobile and portable device
transmissions to encompass all of WCS
Blocks C and D would further reduce
the risk that operation of WCS mobile
transmitters in these bands could pose
an unacceptable interference threat to
SDARS reception. Thus, to further
mitigate the potential for harmful
interference to SDARS operations, the
Commission decided to prohibit WCS
mobile and portable transmitters from
operating in all portions of WCS Blocks
C and D. The Commission decided that
this action would, in effect, provide a 5megahertz transition band for SDARS
receivers at each end of the SDARS
band that would further decrease the
SDARS operations from WCS mobile
devices operating in adjacent spectrum,
while permitting the C and D Blocks
spectrum to be used for WCS base
stations or fixed services. Coupled with
the relaxed PSD and duty cycle limits
that the Commissions adopted in the
Order on Reconsideration for WCS
mobile devices, the Commission
believed that this action would provide
added interference protection to SDARS
operations while advancing the
Commissions goal of making mobile
E:\FR\FM\11FER1.SGM
11FER1
broadband services over the WCS

spectrum widely available.
18. The Commissions adoption of
this approach also furthered its
resolution of the interference protection
matters raised in Sirius XMs petition
for reconsideration. The Commission
first provided notice that it was
considering the issue of interference
management between the WCS and
SDARS in the 2001 Public Notice in this
proceeding, in which the Commission
sought comment on requiring SDARS
licensees to operate their repeaters in
frequency bands at least 4 megahertz
away from the edge of their licensed
frequency bands, among other things.
That issue remained in play with the
timely filing of the Sirius XM
Reconsideration Petition challenging the
Commissions decision in the 2010 WCS
R&O to adopt a different approach.
D. WCS Mobile, Portable, and Fixed CPE
Duty Cycle Limits
19. To facilitate the deployment of
broadband services in WCS spectrum,
the Commission decided in the Order
on Reconsideration to eliminate the
duty cycle requirements for WCS
mobile, portable, and fixed CPE
employing FDD-based technology,
consistent with AT&Ts and Sirius XMs
request in their June 15, 2012
compromise proposal. The Commission
agreed with AT&T that the activity
factor of a WCS mobile device is not a
factor in determining potential
interference to SDARS receivers that
warrants a 25 percent duty cycle for
WCS mobile and portable devices in
WCS Blocks A and B, as the
Commission determined in the 2010
WCS R&O. It also agreed with AT&Ts
and Sirius XMs assertions that
adjacent-band WCS FDD operations will
have minimal impact on the SDARS
receivers automatic gain control (AGC)
circuitry because they involve no
intermittent pulsing. However, based on
Commission staffs analysis of the
record and reinforced by the results of
the testing in Ashburn, Virginia, the
Commission decided to maintain the 38
percent duty cycle limit for WCS mobile
devices using TDD-based technologies.
20. Regarding Sirius XMs argument
that the 38 percent duty cycle limit for
TDD-based devices established in 2010
WCS R&O was not supported by the
record in this proceeding, the
Commission noted that its decision to
adopt a 38 percent duty cycle for TDDbased WCS user devices was a tradeoff
based on its analysis of the record
leading up to adoption of the 2010 WCS
rules and the WCS/SDARS testing in
Ashburn, Virginia. The Commission
decided in 2010 to round up the
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Jkt 229001
permitted TDD duty cycle from the 35

percent used in the Ashburn, Virginia
testing to 38 percent to allow for the
majority of TDD profiles under an LTE
or WiMAX technology selection,
because the 35 percent duty cycle used
during the testing only resulted in two
isolated instances of negligible
interference to SDARS receivers, not
harmful interference that repeatedly
interrupted the SDARS signal.
21. The Commission also declined to
limit WCS mobile devices
transmissions to every other 5
millisecond (ms) frame as Sirius XM
requested in its petition. As determined
by the Commissions analyses and
verified by the WCS/SDARS testing in
Ashburn, Virginia, it found that the
WCS mobile devices transmissions
need not be limited to every other
transmission frame to limit the potential
for harmful interference to SDARS
receivers, as requested by Sirius XM.
However, to eliminate any uncertainty
about how compliance with the duty
cycle is measured, the Commission
clarified its requirement that WCS
subscriber devices duty cycle be
measured in a manner that is referenced
directly to the frame duration for WCS
technology being used. Specifically,
industry standards for WiMAX and LTE
technology specify frame lengths of 5
ms and 10 ms, respectively.
Accordingly, for WCS networks using
WiMAX technology, the duty cycle
should be measured over a 5 ms frame;
for WCS networks using LTE
technology, the duty cycle should be
measured over a 10 ms frame. For TDD
technologies other than LTE and
WiMAX, the duty cycle should be
measured over a frame duration that is
referenced directly to the technology
being used.
E. WCS Out-of-Band Emissions Limit in
the 23002305 MHz Amateur Radio
Service Band
22. Regarding ARRLs petition
requesting that the Commission require
WCS licensees to be responsible for
mitigating harmful interference to
Amateur Radio Service operations in the
23002305 MHz band through operation
of 2.102(f) of the Commissions rules
and AT&Ts and the WCS Coalitions
opposition, as a general matter, the
Commission noted that the technical
and operating rules that its adopts for a
particular service are designed to
prevent harmful interference (i.e.,
interference which seriously degrades,
obstructs, or repeatedly interrupts a
radiocommunication service) to other
services that operate in adjacent bands
and to establish the RF environment for
adjacent band services to coexist. In the
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9609
case of the WCS, the Commission

initially determined that an attenuation
factor of 43 + 10 log (P) dB (i.e., a fixed
limit of -43 dBW) below the transmitter
output power P in Watts for WCS fixed
and mobile devices OOBE in the 2300
2305 MHz band would prevent
interference to Amateur Radio Service
operations in that band. The 2010 WCS
R&O did not alter WCS fixed and
mobile devices OOBE limit of -43 dBW
in the 23002305 MHz band and thus
did not reduce or otherwise modify the
interference protection that the
Commission previously established for
ARS operations in that band. For this
reason, the Commission saw no reason
to address the specific arguments that
ARRL, AT&T, and the WCS Coalition
made regarding the operation of
2.102(f) because the FCCs existing
service and technical rules are already
designed to account for WCS users
operating adjacent to the ARS band. To
the extent that ARRL was asking that the
Commission revisit the attenuation
factor originally established for the WCS
and that was left unmodified in the
2010 WCS R&O, the Commission
concluded that such a request for
reconsideration was not timely filed and
was not appropriate for reconsideration.
23. Clarification of Applicable Bands
for Out-of-Band Emissions Limits. To
eliminate any confusion in the
Commissions rules about where the
OOBE limits for WCS base and fixed
stations, mobile devices, and fixed WCS
CPE must be met, the Order on
Reconsideration clarified the frequency
bands in which the 43 + 10 log (P) dB
and other OOBE attenuation factors
below the transmitter power P are
applicable. Specifically, WCS base and
fixed stations and fixed WCS CPE
transmitting with an average EIRP
greater than 2 Watts must attenuate their
OOBE below the transmitter power P, as
measured over a 1 megahertz resolution
bandwidth, by a factor of not less than
43 + 10 log (P) dB on all frequencies
between 23052320 MHz and between
23452360 MHz that are outside the
licensed band(s) of operation, not less
than 75 + 10 log (P) dB in the 2320
2345 MHz band, not less than 43 + 10
log (P) dB in the 23002305 and 2360
2362.5 MHz bands, not less than 55 +
10 log (P) dB in the 2362.52365 MHz
band, not less than 70 + 10 log (P) dB
in the 2287.52300 MHz and 2365
2367.5 MHz bands, not less than 72 +
10 log (P) dB in the 22852287.5 and
2367.52370 MHz bands, and not less
than 75 + 10 log (P) dB below 2285 MHz
and above 2370 MHz.
24. WCS mobile and portable devices
operating in the WCS A and B Blocks
and fixed WCS CPE transmitting with
E:\FR\FM\11FER1.SGM
11FER1
9610
an average EIRP of 2 Watts or less must

attenuate their OOBE below the
transmitter power P as measured over a
1 megahertz bandwidth, by a factor of
not less than 43 + 10 log (P) dB on all
frequencies between 23052320 MHz
and between 23452360 MHz that are
outside the licensed band(s) of
operation, not less than 55 + 10 log (P)
dB in the 23202324/23412345 MHz
bands, not less than 61 + 10 log (P) dB
in the 23242328/23372341 MHz
bands, and not less than 67 + 10 log (P)
dB in the 23282337 MHz band. In
addition, WCS mobile and portable
devices must attenuate their OOBE
below the transmitter power P by a
factor of not less than 43 + 10 log (P)
dB in the 23002305 and 23602365
MHz bands, not less than 55 + 10 log (P)
dB in the 22962300 MHz band, not less
than 61 + 10 log (P) dB in the 2292
2296 MHz band, not less than 67 + 10
log (P) dB in the 22882292 MHz band,
and not less than 70 + 10 log (P) dB
below 2288 MHz and above 2365 MHz.
25. Measurement Procedures. The
Order on Reconsideration clarified that
measurements of the OOBE from WCS
base, fixed, and fixed CPE stations and
WCS mobile and portable devices made
over a narrower resolution bandwidth
than 1 megahertz (e.g., 1 percent of the
emission bandwidth) must be integrated
over the full measurement bandwidth of
1 megahertz to determine compliance
with the relevant out-of-band emissions
limits. Specifically, compliance with the
part 27 WCS emissions limits rules is
based on the use of measurement
instrumentation employing a resolution
bandwidth of 1 MHz or greater.
However, in the 1 MHz bands
immediately outside and adjacent to the
channel blocks at 2305, 2310, 2315,
2320, 2345, 2350, 2355, and 2360 MHz,
a resolution bandwidth of at least 1
percent of the emission bandwidth of
the fundamental emission of the
transmitter may be employed. A
narrower resolution bandwidth is
permitted in all cases to improve
measurement accuracy provided the
measured power is integrated over the
full required measurement bandwidth
(i.e., 1 MHz). The emission bandwidth
is defined as the width of the signal
between two points, one below the
carrier center frequency and one above
the carrier center frequency, outside of
which all emissions are attenuated at
least 26 dB below the transmitter power.
F. WCS Performance Requirements.
26. Extension of WCS Construction
Deadlines. The Order on
Reconsideration also lengthened by 6
months and restarted the WCS
construction periods established in the
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14:06 Feb 08, 2013
Jkt 229001
2010 WCS R&O to enable WCS licensees

to respond to the rule revisions while
ensuring significant deployment of
facilities in the near term. For mobile
and point-to-multipoint systems in WCS
Blocks A and B, and point-to-multipoint
systems in WCS Blocks C and D, a
licensee must provide reliable signal
coverage and offer service to at least 40
percent of the license areas population
within 48 months, and 75 percent
within 78 months. For fixed point-topoint services, except those deployed in
the Gulf of Mexico license area,
licensees must construct and operate 15
point-to-point links per million persons
(one link per 67,000 persons) in a
license area within 48 months, and 30
links (one link per 33,500 persons)
within 78 months. In those license areas
where licensees demonstrate that 25
percent of the license areas population
for Blocks A, B, or D is within an AMT
coordination zone, alternative
requirements are applicable for mobile
and point-to-multipoint services.
Specifically, affected licensees must
serve 25 (rather than 40) percent of the
population within 48 months, and 50
(rather than 75) percent within 78
months. For point-to-point systems
deployed on any spectrum block in the
Gulf of Mexico license area, a licensee
must construct and operate a minimum
of 15 point-to-point links within 48
months, and a minimum of 15 point-topoint links within 78 months. The
construction periods currently
applicable to existing WCS licensees
will run from the effective date of the
rule revisions adopted in the Order on
Reconsideration.
27. Coverage Requirements Instead of
Substantial Service. The Commissions
decision in the 2010 WCS R&O to
migrate away from substantial service
requirements was based upon a careful
reading of the record, and a balanced
consideration of the public interest.
Therefore, the Commission disagreed
with the Petitioners of the 2010 WCS
R&O that these judgments were arbitrary
and capricious. Accordingly, it
declined, as it did in the 2010 WCS R&O
after a careful assessment of that record,
to apply substantial service performance
requirements in the 2.3 GHz band for
the C and D Blocks, or to reduce their
quantitative benchmarks. In the 2010
WCS R&O, the Commission stated that
its revised performance requirements
would afford WCS licensees bright-line
certainty, and would facilitate
Commission review of WCS
performance showings. Petitioners
provided little to support their
arguments that circumstances with
respect to this spectrum are so difficult
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Fmt 4700
Sfmt 4700
that the Commission must reinstate

substantial service or otherwise reduce
their construction obligations.
28. The Commission disagreed with
petitioners that the more stringent
technical rules for C and D Blocks
relegates them to niche services and
it believed that relief that it provided in
other areas will provide licensees with
additional service options. It found that
retaining quantitative benchmarks best
supported its goals for this service; that
is, that licensees will provide
meaningful service in the near term and
continue to use the spectrum
throughout the course of their license
periods. The Commission believed that,
for the WCS, bright-line coverage
requirements at specified thresholds
serve to promote service throughout a
licensed market, because they prevent
licensees from cherry picking areas
for service rather than meeting the
benchmarks specified in their license
requirements.
29. The Commission noted that
because of its action to prohibit mobile
operations in WCS Blocks C and D, the
respective requirements for the 40 and
75 percent population coverage
benchmarks would only be applicable to
point-to-multi-point systems. However,
it maintained that quantitative
benchmarksrather than a return to
substantial serviceis still the
appropriate standard for all operations
in the C and D Blocks spectrum.
Accordingly, the service requirement for
the C and D Blocks shall be: 40 and 75
percent population coverage at the 48
and 78 month deadlines, respectively,
for point-to-multipoint operations, with
15 point-to-point links per million
persons in a license area within 48
months, and 30 point-to-point links per
million persons in a license area within
78 months for point-to-point fixed
operations.
30. Finally, the Commission noted
that certain entities had sought guidance
as to the specific performance
requirements that would be applied to
current or potential operations in the C
and D Blocks that do not fall within the
traditional mobile, point-to-multipoint,
or point-to-point fixed models. For
example, Gogo, Inc. sought clarification
as to whether ground-to-air uplinks
could be deployed in the C and D
Blocks, and what coverage requirements
would apply. The Commission noted
that there are hybrid or non-traditional
operations that do not fit precisely in
one category; for example, there may be
WCS point-to-multipoint systems that
could be viewed as functionally
consistent with a WCS point-to-point RF
network, e.g., certain smart grid links to
monitoring stations, maintenance
E:\FR\FM\11FER1.SGM
11FER1
instrumentation, automatic metering
collection points, and video
surveillance. However, given the wide
range of deployments and applications
possible, the Commission found that
WCS licensees should seek guidance
from the Wireless Telecommunications
Bureau on a case-by-case basis in
determining whether their service is
permissible within the C and D Blocks,
and which benchmarks apply.
31. Performance Penalties. The
Commission finds basis in the record for
reconsidering the rule that licenses will
automatically terminate if a
performance benchmark is not satisfied.
The parties reiterated many of the same
arguments that were raised throughout
the proceeding, which the Commission
previously considered and rejected.
Despite the parties arguments that
applying the automatic termination
policy is counter to prior Commission
practice, the decision to terminate
licenses if performance benchmarks are
not met was consistent with the
Commissions past practice in most
geographically-licensed wireless
services, including the 800 MHz
Specialized Mobile Radio Service (800
MHz SMR), PCS, and Advanced
Wireless Services (AWS), as well as in
the 1997 WCS Report and Order.
Further, although Petitioners continued
to claim that an automatic termination
rule deters investment and construction
of networks, they provided no support
that licensees have been denied
financing or that deployment of
broadband has been slowed due to this
policy. The Commission remained
unconvinced that automatic termination
of a license for which the performance
requirements are not met itself deters
capital investment or otherwise hinders
the development or deployment of
service. On the contrary, several
wireless services subject to this kind of
performance penalty have thrived.
32. The Commission remains
unpersuaded that it should revise its
WCS rules to adopt a keep-what-youuse policy because the Commission
adopted the approach with respect to
certain 700 MHz licenses. The
Commission found that the
considerations and goals with respect to
WCS are so similar to the circumstances
underlying the 700 MHz Service such
that it was compelled to revise existing
WCS requirements to mirror the 700
MHz performance penalties. While the
2010 WCS R&O did call attention to the
difference between WCS and 700 MHz
rules with respect to submarket
performance requirements, the
Commission noted that the submarket
performance rule is only one
distinction. Differences in the specific
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policy objectives behind the respective

performance requirements and penalties
also supported the application of a
different performance penalty.
33. In adopting the keep-what-youuse approach in the 700 MHz
proceeding, the Commission sought to
make available additional mechanisms
to enable access to spectrum by new
entrants after an initial licensee either
fails or chooses not to provide service in
a particular area by the applicable
deadline. Alternatively, the focus of the
performance requirements for the WCS
adopted in the 2010 WCS R&O was to
ensure the rapid and meaningful
provision of service throughout an
entire licensed market. Given the length
of time that currently licensed spectrum
has remained largely unused, the
Commission purposefully imposed
ambitious construction criteria,
including the automatic termination
performance penalty, to ensure that
extensive service coverage occurs in the
near term. The Commission found that
this goal would not be better served by
implementing a keep-what-you-use
performance penalty that may not
facilitate service coverage in an area
until after a current WCS licensee has
returned unused spectrum to the
Commission. In this context, the
Commission concluded that the
automatic termination approach would
be more effective in accomplishing the
Commissions objective of intensive,
near term WCS construction.
34. Further, the Commission
disagreed with the argument that the
automatic termination approach is
intrinsically tied to less strict
performance benchmarks. The
automatic termination approach has
historically been applied to geographic
market-based licenses generally. In
adopting performance requirements for
its various wireless services, the
Commission has not as a practice linked
substantial service and the use of the
automatic termination penalty. To the
contrary, the automatic termination
approach has been used as a penalty for
services that did not initially have a
substantial service performance
obligation.
35. Finally, the Commission rejected
arguments that the automatic
termination rule is unfair to licensees
because, according to petitioners, the
rule requires automatic termination of a
license even where failure to meet a
benchmark is due to circumstances out
of the control of a licensee, or even, for
example, if the licensee has covered 74
percent of the population at the final
deadline. Petitioners argued that
application of this policy would cut off
service to customers and strand
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9611
investment. However, 1.946(e)(1) of

the Commissions rules provides that
extensions may be granted where failure
to comply with construction
requirements is due to causes beyond
the control of the licensee, and
Commission staff has previously granted
relief from the Commissions
performance rules in cases where it was
in the public interest to do so. For
example, Commission staff has granted
extensions where it found that a
complete lack of available equipment
for a service presented circumstances
beyond the control of licensees, or
where licensees were able to show a
significant level of diligence and
commitment to construction of
facilities. As noted in the 2010 WCS
R&O, the Commission stated that it
would continue to consider and
evaluate requests for extension or
waiver and grant relief if circumstances
warrant. The Commission emphasized,
however, that any relief sought must be
weighed against the public interest goals
underlying our construction rules,
which is to ensure the efficient use of
spectrum and the expeditious provision
of service to the public. As noted, in
specifying performance rules for this
service, the Commission purposefully
imposed rigorous construction criteria
and retained the automatic termination
policy in order to ensure meaningful
and rapid deployment of service in the
WCS band. The Commission would
grant extension or waiver relief only if
it determines that such action is not
contrary to the goals underlying the
WCS performance requirements, and
otherwise serves the public interest.
G. WCS Information Sharing
Requirements
36. Notification Requirements. The
Commission agreed that it is in the
public interest to allow WCS licensees
the flexibility to respond to market
conditions by making minor
modifications to their facilities as long
as these modifications do not result in
operations (i.e., muting). While the
Commission believed that the 2 dB
power flux density (PFD) increase
notification trigger sought by the WCS
Coalition may be problematic, it
nonetheless found it appropriate to
permit WCS licensees to optimize
facilities and correct coverage gaps
without advance notice in
circumstances where such
modifications are unlikely to cause
receivers. Therefore, WCS licensees
were allowed to modify their facilities,
other than changes in location, without
prior notice so long as the change does
E:\FR\FM\11FER1.SGM
11FER1
9612
not increase the predicted PFD at

ground level by more than 1 dB and
notice of the modification is provided
within 24 hours of deployment. The
Commission saw no empirical evidence
in the record that demonstrates that a 1
dB increase in PFD as a result of a WCS
modification is likely to cause harmful
interference to nearby SDARS receivers.
Rather, it anticipated that in most cases
there will be sufficient margin in the
SDARS link budget such that harmful
interference will be avoided.
37. Moreover, WCS licensees were not
being exempted from their obligation to
provide notice regarding modifications
to their stations; WCS entities must
notify SDARS licensees within 24 hours
of these changes to allow for monitoring
of the effects of the modifications. In
addition, the notification exception for
no more than a 1 dB increase in PFD can
be distinguished from Sirius XMs prior
proposal for imposition of system-wide
PFD limits on WCS base station
transmissions because it would only
affect the trigger for notification of a
modification to SDARS licensees, and is
not an across the board criteria for
limiting WCS base stations groundlevel power. If, after gaining experience
with the 1 dB PFD increase exception to
the notification procedures, there is
harmful interference to SDARS receivers
as a result of such modifications, the
Commission would restore the formal
notification procedure that requires 5business days notice prior to modifying
WCS facilities.
38. However, Sirius XM raised a valid
argument that multiple modifications to
WCS stations could result in a predicted
aggregate PFD increase that may
negatively affect SDARS receivers. To
avoid such a result, although WCS
licensees may make 24 hour post
modification notifications as long as the
predicted PFD increase at ground level
is not greater than 1 dB, if an SDARS
licensee demonstrates to the WCS
licensee that the series of modifications
using post-modification notification
procedures may cause harmful
interference to SDARS receivers, the
WCS licensee must provide the SDARS
licensee with a 5 day notice in advance
of additional modifications to WCS base
and fixed stations. However, the 1 dB
limit will not apply where a
coordination agreement between the
parties specifies otherwise.
39. In addition, in light of the
Commissions decision to adopt the
maximum design ground power level
targets along roadways of 44 dBm for
WCS Blocks A and B and 55 dBm for
WCS Blocks C and D, it also permitted
after-the-fact notification where
modifications to WCS base and fixed
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stations do not exceed these limits.

However, it did not adopt Sirius XMs
suggestion that, if it was unwilling to
adopt WCS PFD limits, interference
mitigation issues must be resolved
through a separate coordination
agreement between Sirius XM and the
WCS licenses or through a
clearinghouse acting on the licensees
behalf. Requiring such agreements or a
clearinghouse would unnecessarily
increase administrative burdens on all
licensees.
40. Further, the Commission modified
the rules to exclude WCS base and fixed
stations operating under 2 W EIRP from
the inventory and notification
requirements and agreed with Sirius XM
that, to the extent that the parties can
mutually agree on alternative
coordination and notification
procedures, the rules should
accommodate private agreements
between WCS licensees and Sirius XM
that implement such modified
procedures. Although the Commission
did not adopt a list of modifications
unlikely to cause interference where
after-the-fact-notification would
apply as suggested by Sirius XM, it
recognized that it would be beneficial
for WCS licensees and Sirius XM to
reach agreement on procedures that
would streamline the notification
process.
41. Lastly, the Commission clarified
that the inventory and SDARS licensee
notification requirements in 27.72
apply to both WCS base and fixed
stations (except fixed WCS CPE). Sirius
XM is correct that the Commission has
during this proceeding used the terms
WCS base station and WCS station
interchangeably in the context of
information sharing requirements. It is
discernible from a review of the 2001
Public Notice and 2007 Notice in this
proceeding that the Commissions use of
base station also encompassed fixed
stations. Moreover, the 2010 WCS R&Os
use of language directing WCS licensees
to provide information to SDARS
licensees regarding their deployed
infrastructure also demonstrated that
the information sharing obligations are
not limited only to base stations used in
a mobile system. Accordingly, it revised
27.72 to make clear that WCS licensees
must share fixed and base station
information with SDARS licensees.
However, it clarified that fixed WCS
CPE (i.e., fixed equipment operated by
a WCS subscriber) is not subject to this
requirement. Further, to the extent that
WCS licensees have not yet provided
notice for existing fixed stations to
SDARS licensees, WCS licensees must
do so no later than 30 days after the
effective date of this Order.
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42. Duty to Cooperate and

Coordination. Upon review, the
Commission found no basis to revise its
requirements regarding WCS licensees
duty to cooperate. First, it declined to
adopt the proposals submitted by Sirius
XM as they were considered when they
were initially proposed in this
proceeding and explicitly rejected by
the Commission in the 2010 WCS R&O.
The Commission found that no further
evidence had been introduced into the
record to cause us to reconsider this
decision. Specifically, it rejected as
unnecessary the proposals that WCS
licensees provide a schedule of when
network facilities will be transmitting,
or make pre-sale devices available to
Sirius XM for inspection. Although it
expected the parties to cooperate and
take good faith measures to prevent
harmful interference, it decided it must
balance the need for an exchange of
useful information against requiring the
disclosure of market sensitive
information that is not reasonably
necessary to prevent harmful
interference, such as licensees
proprietary equipment information and
business or operating plans.
43. For these reasons, the Commission
also declined to require WCS licensees
to enter into a coordination agreement
with Sirius XM with provisions similar
to the June 15, 2012 AT&T/Sirius XM
agreement. It emphasized, however, that
cooperation between WCS and SDARS
licensees is critical to the successful
coexistence between WCS and SDARS
systems, and encouraged WCS licensees
to develop and enter into separate
coordination agreements with SDARS
licensees for interference mitigation.
The Commission therefore revised
27.72 to incorporate the AT&T/Sirius
XM proposed language encouraging the
adoption of coordination agreements by
WCS and SDARS. To the extent any
provision of a coordination agreement
between parties to mutually resolve
harmful interference conflicts with
other information sharing requirements
adopted in this proceeding, the parties
are obligated to follow the procedures
established under the agreement.
44. The Commission also did not
require that a clearinghouse or single
point of contact be created to provide
information from WCS licensees to
Sirius XM. It agreed with the WCS
Coalition that interference issues are
best handled directly by the entities
operating the networks and that an
obligatory intermediary will add an
unnecessary step into the process.
Similarly, the Commission concluded
that de facto spectrum transfer lessees
already assume the notification and
interference obligations pursuant to our
E:\FR\FM\11FER1.SGM
11FER1
secondary markets rules and policies.

However, if the number of WCS
providers increases dramatically, the
Commission may reevaluate whether
the burden to SDARS of coordinating
with multiple providers offsets the
inefficiency of introducing a third party
into the process.
45. Although the Commission did not
mandate how information should be
exchanged between WCS and SDARS
licensees, it expected that licensees
would coordinate to ensure the seamless
and successful exchange of information.
WCS and SDARS licensees are able to
enter into agreements, as discussed
above, regarding the logistics of
information exchanges, and the
Commission encouraged parties to
implement measures to streamline the
process to the extent possible.
H. Aeronautical Mobile Telemetry and
Deep Space Network Coordination
46. Upon further review, the
Commission found it necessary to
reconsider and clarify the role of ITU
R M.1459 in the coordination of WCS
and AMT facilities to promote and bring
certainty to the coordination process. It
required WCS and AMT entities, using
accepted engineering practices, to apply
ITUR M.1459, as adapted to local
conditions and operating characteristics
of both WCS and AMT systems, in
coordinating their stations, and thus
modified rule 27.73(a) accordingly.
47. Recommendation ITUR M.1459
sets forth the recommended framework
for co-channel sharing between AMT
and mobile satellite services operations,
but is not specific to WCS terrestrial
operations. Although the 2010 WCS
R&O did not specifically require that the
parties use the interference protection
mechanism set forth in the
Recommendation in coordinating AMT
and WCS facilities, 27.73(a) provides
that coordination within 45 km or line
of sight of an AMT facility is necessary
to protect AMT receivers consistent
with Recommendation ITUR M.1459.
48. In referencing the
Recommendation in 27.73(a), the
Commission did not require parties to
apply the recommended protection
values found in the Recommendation.
The reference to ITUR M.1459 instead
serves as a reference point that WCS
licensees and AMT entities may
consider in the course of determining
how to coordinate their systems. In
setting out general guidelines in the
2010 WCS R&O and 27.73(a), the
Commission sought to provide parties
with flexibility to reach agreement on an
appropriate mechanism that provides
both adequate protection to AMT
facilities while permitting WCS
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licensees to operate around such

facilities to the greatest extent possible.
49. The Commission continued to
believe that the appropriate approach to
reducing potential interference between
WCS base stations and AMT
installations is for the entities, when
engaged in a coordination process, to
take into account the local conditions
around applicable AMT sites and
specific operating characteristics of the
AMT and WCS facilities. However,
given the continued differences in how
the parties view the basis of such
coordination, it was concerned that the
parties would be unable to reach a
mutually satisfactory agreement
regarding the WCS deployment in a
timely manneran outcome which
could lead to unacceptable delays in the
deployment of WCS networks.
Therefore, the Commission found it
necessary to provide additional clarity
regarding the WCS/AMT coordination
process.
50. Specifically, the Commission
required that WCS and AMT entities
take into account interference protection
considerations identified in ITUR
M.1459 as part of the required
coordination process. The
Recommendation sets forth extremely
conservative baseline protection, or PFD
levels, intended to protect AMT
receivers. The Commission believed that
in many cases, the recommended
protection criteria would provide more
protection than required, unnecessarily
restricting areas where WCS licensees
may provide service. The
Recommendation itself notes that AMT
stations have a wide range of
characteristics, and that some facilities
may require less stringent protection
criteria values than those contained in
ITUR M.1459. Also, ITUR M.1459
notes that, even in the context of cochannel sharing, the calculation used to
derive the protection values represents
a worst case scenario. This
notwithstanding, the ITUR M.1459
PFD levels are based on general
telemetry system characteristics that are
applicable in helping to determine AMT
facilities vulnerability to interference.
Moreover, given the conditions of
testing and types of deployments in the
AMT band, there may be circumstances
where an AMT facility may require the
level of protection contemplated by
ITUR M.1459. Accordingly, the
Commission required the parties to use
the ITUR M.1459 PFD levels as a
baseline from which to conduct
negotiations and interference studies.
51. In doing so, however, the
Commission did not intend for parties
to strictly apply the recommended PFD
level found in ITUR M.1459. The
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9613
Commission found that strict

application of the Recommendation
could, in many cases, lead to overprotection of the AMT receiver, thereby
unnecessarily restricting the ability of
the WCS licensee to operate. Therefore,
to determine the appropriate protection
level for an AMT facility, the parties
must, using accepted engineering
practices, evaluate local conditions
surrounding an AMT receiver as well as
the specific operating characteristics of
the applicable AMT and WCS systems,
and determine how the baseline PFD
should be adapted and made less
restrictive in light of these factors. The
Commission specified that the local
conditions and operating characteristics
that the parties must consider in their
analysis include (but are not limited to):
line of sight obstructions (e.g.
topography), actual performance
characteristics of the AMT receiver (e.g.
antenna gain, power level, and
modulation), types of AMT antennas
used, field of view of the AMT receiver,
as well as area of operation of the AMT
receiver and the manner in which
telemetry testing is being performed.
The Commission required parties to
adapt the baseline protection criteria for
AMT, i.e. the applicable PFD level, in
light of these and other factors
applicable to the facility in question. It
found that these requirements would
bring greater certainty to the
coordination process, and better enable
AMT and WCS entities to reach
agreement on measures that will protect
AMT receivers and enable WCS
licensees to operate in the surrounding
area to the greatest extent possible.
52. Thus, the Commission declined to
remove the reference to ITUR M.1459
in 27.73(a), as the WCS Coalition
requested, but clarified that WCS and
AMT entities, using accepted
engineering practices, are required to
apply ITUR M.1459, as adapted to
local conditions and operating
characteristics of both WCS and AMT
systems, in coordinating their stations.
In addition, as determined in the 2010
WCS R&O, it clarified in 27.73(a) that
a coordination agreement to protect
existing AMT receivers from WCS base
station operations is between the WCS
licensee and AMT entity(ies); Aerospace
& Flight Test Radio Coordinating
Council (AFTRCC) will facilitate
achievement of a mutually satisfactory
WCS licensee and AMT entity(ies) for
AMT receiver sites in existence at the
time of the coordination.
53. AFTRCC also requested, by way of
a February 7, 2012 Ex Parte submission,
that the Commission expand 27.73 to
require WCS licensees to coordinate
E:\FR\FM\11FER1.SGM
11FER1
9614
their fixed stations with AMT entities

and NASAs DSN facility at Goldstone,
California. Although the WCS Coalition
opposed AFTRCCs request with respect
to coordination with AMT entities,
AT&T did not object to AFTRCCs
request to include WCS fixed stations
with WCS base stations in the AMT
coordination regime. The WCS Coalition
argued that coordination with AMT
entities of WCS fixed stations should
not be required since there have not
been any reports of harmful interference
to AMT receivers due to WCS fixed
stations operations, while AT&T had
committed to coordinate with AMT
entities WCS fixed stations that operate
in the upper WCS bands at 23452360
MHz. The National
Telecommunications and Information
Administration (NTIA) supported
coordination of WCS fixed stations that
operate in the 23052320 MHz and
23452360 MHz bands with NASA and
AMT entities, respectively.
54. To alert AMT entities and NASA
to the location and operation of WCS
fixed stations that will be deployed
within 45 km of AMT receivers and 145
km of the Goldstone, California DSN
facility, we clarify that the AMT and
DSN coordination requirements for
WCS licensees apply to both WCS base
and fixed stations (i.e., except fixed
WCS CPE). It is discernible from a
review of the 2001 Public Notice and
2007 Notice in this proceeding that the
Commissions use of base station also
encompassed fixed stations. Moreover,
the 2010 WCS R&Os use of language
directing WCS licensees to provide
information to SDARS licensees
regarding their deployed
infrastructure also demonstrates that
WCS licensees information sharing
obligations with respect to SDARS
licensees are not limited only to base
stations used in a mobile system.
Accordingly, the Commission revised
27.73 to make clear that WCS licensees
must coordinate 2.3 GHz WCS base and
fixed stations with AMT entities and
NASAs DSN facility in Goldstone, CA.
However, it clarified that fixed WCS
CPE (i.e., fixed equipment operated by
a WCS subscriber) is not subject to this
coordination requirement.
III. Order on Reconsideration in IB

Docket No. 9591
A. Operation of SDARS Terrestrial
Repeaters Above 12 Kilowatts Average
EIRP
55. Site-by-Site Licensing. The
Commission declined to adopt the WCS
Coalitions suggestions that the
Commission clarify the rules governing
site-by-site licensing of terrestrial
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repeaters by requiring that SDARS

licensees seeking to operate a repeater at
a power level greater than 12 kW
average EIRP must request a waiver of
the power limit rule and must serve
such applications on all potentially
affected WCS licensees. In the SDARS
2nd R&O, the Commission found that
operation of SDARS repeaters above 12
kW average EIRP serves the public
interest in areas where WCS facilities
are not providing commercial service or
such commercial service is not
imminent. The Commissions rules
explicitly allow repeater operations at
power levels greater than 12 kW average
EIRP on a site-by-site licensing basis,
until a potentially affected WCS
licensee notifies the SDARS licensee of
the imminent commencement of
commercial operations. Thus, the
Commission determined that there was
no need for an SDARS applicant to seek
a waiver of the Commissions rules to
operate repeaters at power levels greater
than 12 kW average EIRP, because the
Commissions rules already explicitly
allow such operations. The
Commissions Satellite Division has
authorized the operations of a small
number of SDARS repeaters at power
levels above 12 kW average EIRP on
delegated authority under a site-by-site
licensing regime, without waiving the
12 kW average EIRP power limit set
forth in 25.214(d). The Commission
has not found any error in the
authorization.
56. The Commission also found in the
SDARS 2nd R&O that the public interest
supports authorizing as many SDARS
repeaters as possible at levels of 12 kW
average EIRP or less through a blanket
licensing process, rather than at higher
power levels through site-by-site
licensing. The Commission reiterated its
intent to authorize the vast majority of
SDARS repeaters at power levels at or
below 12 kW average EIRP under a
blanket license. In addition, however, it
anticipated authorizing repeaters above
12 kW average EIRP mainly in areas
where WCS licensees do not provide
commercial service and do not provide
notice to SDARS licensees of imminent
commercial service.
57. The Commission also found that
it is unnecessary to require SDARS
applicants to serve applications for siteby-site repeater authorization on WCS
licensees. The Communications Act of
1934, as amended, and Commission
rules generally require 30-days notice to
the public before the Commission can
act on any license application. Thus,
parties potentially affected by the
proposed operations already have an
adequate opportunity to file comments
or petitions to deny in response to any
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application to operate SDARS repeaters.

The WCS Coalition provided no
evidence why additional notice of
proposed SDARS repeaters operations is
necessary, particularly as there is only
one SDARS licenseeSirius XMfor
WCS licensees to monitor.
58. Definition of Potentially
Affected WCS Licensee. The
Commission adopted the alternative
definition of a potentially affected
WCS licensee in 25.202(h) and
25.214(d) of the Commissions rules,
which Sirius XM and WCS licensees
both supported. Accordingly, it
amended 25.202(h)(4) and
25.214(d)(3) to incorporate a 25 km
metric for determining whether a WCS
licensee is potentially affected by a
repeater operating above 12 kW EIRP
(average) or with an OOBE attenuation
level less than those specified in
25.202(h)(1) and (h)(2)). The
Commission recognized in the SDARS
2nd R&O that the use of major economic
areas (MEAs) and regional economic
area groupings (REAGs) may be
overbroad in determining which WCS
licensees would be potentially affected
by a particular SDARS repeater for the
purposes of 25.202(h) and 25.214(d).
There was no basis at the time, however,
to find that the proximity-based
approach favored by Sirius XM would
adequately protect WCS licensees from
harm. The record established since the
release of the SDARS 2nd R&O, as well
as the support of both the WCS
Coalition and Sirius XM, provided a
basis for adopting a 25 km proximitybased definition of a potentially
affected WCS licensee for purposes of
25.202(h) and 25.214(d) of the
Commissions rules.
59. The Commission did not,
however, determine that a blanket
notification issued by a WCS licensee
for all locations potentially affected
by repeater deploymentsregardless of
the actual predicted risk of
interferencewould constitute bad
faith, as requested by Sirius XM. An
SDARS licensee is required to change
the operating parameters of repeaters
under 25.202 and 25.214 only when
a potentially affected WCS licensee
notifies it that the WCS licensee intends
to commence commercial service within
365 days. Thus, SDARS repeater
operations will be impacted only if a
WCS licensee has either already
commenced commercial service, or
when such service is imminent. The
Commission previously stated that this
discourages a WCS licensee from
sending notices for all areas in which it
has licenses to operate, regardless of
when the licensee actually contemplates
service. Although there may be
E:\FR\FM\11FER1.SGM
11FER1
instances where the WCS licensee
provides notice of imminent
commercial service but does not
commence service within the 365-day
period, the Commission stated that it
did not expect bad faith to be the reason
for the delay. It saw no reason to find
differently. To the extent that a WCS
licensee may overstate the potential for
interference from a particular SDARS
repeater, the Commission did not have
reason to find that bad faith would
necessarily be the motivating factor.
B. Operation of Low-Power SDARS

Terrestrial Repeaters
60. The Commission agreed that
SDARS terrestrial repeaters operating
below 2 W EIRP are unlikely to be
sources of interference, and therefore it
is unnecessary to include these lowpower devices in the inventory and
notification requirements adopted in the
SDARS 2nd R&O for higher-power
devices. Accordingly, it modified
25.263 to exempt such devices from
requirements for SDARS terrestrial
repeaters.
C. Notification and Cooperation
Requirements
61. The Commission declined to
revisit the duty to cooperate
requirement imposed on WCS licensees
in 27.72(e) of the Commissions rules
and maintained the existing language of
the rule. The existing language requires
WCS licensees to provide SDARS
licensees with as much lead time as
practicable to provide ample time to
conduct analyses and opportunity for
prudent base station site selection prior
to WCS licensees entering into real
estate and tower leasing or purchasing
agreements. Although the WCS
Coalition argued that the additional
language is unnecessary where the risk
of interference is small, the purpose of
the rule itself is to allow licensees to
determine the risk of interference as
early as practicable in the site selection
process so that changes can be made if
potential harmful interference is found.
Thus, the Commission decided that it
does not serve the purpose of the rule
to remove requirements that allow
sufficient time to conduct interference
analyses and allow time to modify the
site selection, if necessary.
62. The Commission agreed with the
WCS Coalition, however, that the notice
and duty to cooperate obligations
between SDARS and WCS licensees
should be parallel. To make the
obligations parallel, it modified the duty
to cooperate obligations for SDARS
licensees to match the obligation for
WCS licensees. The Commission
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disagreed with Sirius XM that the

record in this proceeding demonstrates
that risks of interference from WCS
stations to SDARS operations are higher
than the risks of interference from
SDARS repeaters to WCS operations,
and thus impose a greater duty to
cooperate on WCS licensees than on
SDARS licensees. Accordingly, it
amended 25.263(e) to add a
requirement that SDARS licensees
should provide WCS licensees as much
lead time as practicable to provide
ample time to conduct analyses and
opportunity for prudent repeater site
selection prior to SDARS licensees
entering into real estate and tower
leasing or purchasing agreements.
63. Because the Commission agreed
that the notice and duty to cooperate
obligations between SDARS and WCS
licensees should be parallel, it modified
the notice requirements for SDARS
repeaters to permit SDARS licensees to
modify existing facilities, other than
changes in location, without prior
notice so long as the change does not
increase the predicted PFD at ground
level by more than 1 dB and notice of
the modification is provided within 24
hours of deployment. At the request of
WCS licensees, the Commission also
adopted this revision to the notice
obligations for WCS licensees. It saw no
reason why a parallel revision should
not be made for SDARS repeaters and
amend the notice requirements of
25.263(b) accordingly. However,
multiple modifications to SDARS
terrestrial repeaters could result in a
predicted aggregate PFD increase that
may negatively affect WCS receivers. To
avoid such a result, although an SDARS
licensee may make 24-hour postmodification notifications as long as the
is not greater than 1 dB, if a WCS
licensee demonstrates to the SDARS
interference to WCS receivers, the
SDARS licensee must provide the WCS
licensee with 5-business days notice in
advance of additional modifications to
SDARS terrestrial repeaters. However,
the 1 dB limit will not apply where a
parties specifies otherwise.
64. In addition, the Commission
ordered Sirius XM to provide
potentially affected WCS licensees an
inventory of its terrestrial repeater
infrastructure, including the
information set forth in 25.263 for
each repeater currently deployed,
within 30 days of the publication of a
summary of this Order on
Reconsideration in the Federal Register.
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9615
It agreed with the WCS Coalition that

such a requirement is consistent with
the intent of the SDARS 2nd R&O. For
the purpose of this requirement, the
definition of potentially affected WCS
licensee is the same as that used in
25.263(b)(1) of the Commissions rules.
65. Finally, the Commission
emphasized that cooperation between
SDARS and WCS licensees is critical to
the successful coexistence between
SDARS and WCS systems, and
encouraged SDARS licensees to develop
and enter into separate coordination
agreements with WCS licensees for
interference mitigation. Therefore, it
revised 25.263(b)(3) to incorporate the
AT&T/Sirius XM proposed language
encouraging the adoption of
coordination agreements by WCS and
SDARS. To the extent any provision of
a coordination agreement between
parties to mutually resolve harmful
interference conflicts with other
information sharing requirements
adopted in this proceeding, the parties
are obligated to follow the procedures
established under the agreement. The
Commission also added a provision to
25.263(b) to make clear that SDARS
and WCS are able to enter into
agreements regarding the logistics of
information exchanges, and it
encouraged parties to implement
measures to streamline the process to
the extent possible.
IV. Procedural Matters
A. Supplemental Final Regulatory
Flexibility Analysis in WT Docket No.
07293
66. As required by the Regulatory
Flexibility Act of 1980, as amended
(RFA),1 Initial Regulatory Flexibility
Analyses (IRFAs) were incorporated in
the Notice of Proposed Rulemaking
(2007 Notice) 2 and the WCS
Performance Public Notice 3 in WT
Docket No. 07293. The Commission
sought written public comment on the
1 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601
612, has been amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
(SBREFA), Public Law 104121, Title II, 110 Stat.
857 (1996).
2 See Amendment of part 27 of the Commissions
Rules to Govern the Operation of Wireless
Communications Services in the 2.3 GHz Band and
Establishment of Rules and Policies for the Digital
Audio Radio Satellite Service in the 23102360
MHz Frequency Band, Notice of Proposed
Rulemaking and Second Further Notice of Proposed
Rulemaking, WT Docket No. 07293 and IB Docket
No. 9591, 73 FR 2437 (January 15, 2008) (2007
Notice).
3 See Federal Communications Commission
Requests Comment on Revision of Performance
Requirements for 2.3 GHz Wireless
Communications Service, WT Docket No. 07293,
Public Notice, 75 FR 17349 (April 6, 2010) (WCS
Performance Public Notice).
E:\FR\FM\11FER1.SGM
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9616
proposals in the 2007 Notice and WCS

Performance Public Notice, including
comment on the IRFAs. In addition, a
Final Regulatory Flexibility Analysis
(FRFA) was incorporated in the Report
and Order in WT Docket No. 07293
(2010 WCS R&O).4 This present
Supplemental Final Regulatory
Flexibility Analysis (Supplemental
FRFA) for the Order on Reconsideration
conforms to the RFA.5
67. Need for, and Objectives of, the
Order on Reconsideration. The Order on
Reconsideration responded to petitions
for reconsideration of the Report and
Order adopting service rules for the
Wireless Communications Service
(WCS) in the 23052320 MHz and
23452360 MHz bands (2.3 GHz WCS
bands). The need for and objectives of
the rules adopted in this Order on
Reconsideration are the same as those
discussed in the FRFA for the Report
and Order. In the Report and Order, the
Commission took a number of steps to
facilitate deployment of mobile
broadband products and services in the
23052320 MHz and 23452360 MHz
Wireless Communications Service
(WCS) bands, while safeguarding from
harmful interference satellite radio
services, which are provided in the
interstitial 23202345 MHz Satellite
Digital Radio Service (SDARS) band. In
the 2010 WCS R&O, the Commission
adopted provisions to establish a
permanent regulatory framework for the
co-existence of WCS and SDARS
operations in the 23052360 MHz band
while limiting the WCSs potential to
cause harmful interference (i.e.,
interference which seriously degrades,
obstructs, or repeatedly interrupts a
radiocommunication service) to other
adjacent bands services. Specifically,
the Commission revised certain power
and out-of-band emissions (OOBE) rules
applicable to WCS licensees.
68. On reconsideration, the
Commission took the following actions:
(1) Established maximum design ground
power level targets for WCS base and
fixed station operations to define
harmful interference on roadways and
serve as triggers for interference
resolution if exceeded and harmful
interference (i.e., muting) to SDARS
operations occurs; (2) eliminated the
frequency band restrictions on WCS
4 See Amendment of part 27 of the Commissions
Rules to Govern the Operation of Wireless
Communications Services in the 2.3 GHz Band, WT
Docket No. 07293, Establishment of Rules and
Policies for the Digital Audio Radio Satellite
Service in the 23102360 MHz Band, IB Docket No.
9591, GEN Docket No. 90357, RM8610, Report
and Order and Second Report and Order, 75 FR
45058 (April 2, 2010) (2010 WCS R&O and SDARS
2nd R&O).
5 See 5 U.S.C. 604.
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FDD base station operations; (3) relax

the restrictions on low-power fixed
WCS customer premises equipment
(CPE) (average equivalent isotropically
radiated power (EIRP) less than 2 Watts)
outdoor and outdoor antenna use under
certain circumstances; (3) eliminated
the duty cycle limits for WCS mobile
and portable devices and fixed WCS
CPE using FDD technology; (4)
eliminated the power spectral density
(PSD) limit for WCS mobile and
portable devices using appropriate
uplink protocols (e.g., 3rd Generation
Partnership Project (3GPP) Long Term
Evolution (LTE)); (5) restricted WCS
mobile and portable device
transmissions in all portions of WCS
Blocks C and D; (6) encouraged WCS
licensees to enter into coordination
agreements with SDARS licensees to
facilitate efficient deployment of and
coexistence between each service; (7)
required notification of WCS fixed
stations to SDARS licensees; (8) require
coordination of WCS fixed stations with
entities and NASAs Deep Space
Network facility in Goldstone,
California; (9) allowed post notification
to SDARS licensees within 24 hours for
minor WCS station modifications (other
than location changes) so long as the
ground level power flux density is not
increased by more than 1 dB; 10)
exclude WCS stations operating under 2
Watts EIRP from the WCS inventory and
notification requirements. The
Commission affirmed its decisions in
the 2010 WCS R&O to not establish
guard bands near the SDARS band for
fixed WCS CPE. It also affirmed its
decision to prohibit FDD WCS mobile
and portable devices from transmitting
in the 23452360 MHz band, and
affirmed the OOBE limits for WCS
mobile and portable devices and duty
cycle limit for WCS mobile and portable
devices and fixed WCS CPE using time
division duplexing (TDD) technology
adopted in the 2010 WCS R&O. Finally,
the Commission restarted and extended,
by six months, the period within which
licensees must satisfy the WCS
performance requirements.
69. Summary of Significant Issues
Raised by Public Comments in Response
to the IRFA. No comments were
received in response to the IRFAs in the
2007 Notice and the WCS Performance
Public Notice.
70. Description and Estimate of the
Number of Small Entities to Which the
Rules Will Apply. The RFA directs
agencies to provide a description of and,
where feasible, an estimate of the
number of small entities that may be
affected by the rules adopted. The RFA
generally defines the term small
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Fmt 4700
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entity as having the same meaning as

the terms small business, small
organization, and small governmental
jurisdiction. In addition, the term
small business has the same meaning
as the term small business concern
under the Small Business Act. A small
business concern is one which: (1) Is
independently owned and operated; (2)
is not dominant in its field of operation;
and (3) satisfies any additional criteria
established by the Small Business
Administration (SBA). A small
organization is generally any not-forprofit enterprise which is independently
owned and operated and is not
dominant in its field. Below, the
Commission further describes and
estimates the number of small entity
licensees and regulatees that may be
affected by the rules changes adopted in
the Order on Reconsideration.
71. Wireless Telecommunications
Carriers (except satellite). This industry
comprises establishments engaged in
operating and maintaining switching
and transmission facilities to provide
communications via the airwaves.
Establishments in this industry have
spectrum licenses and provide services
using that spectrum, such as cellular
phone services, paging services,
wireless Internet access, and wireless
video services. The appropriate size
standard under SBA rules is for the
category Wireless Telecommunications
Carriers. The size standard for that
category is that a business is small if it
has 1,500 or fewer employees. Under
the present and prior categories, the
SBA has deemed a wireless business to
be small if it has 1,500 or fewer
employees. For this category, census
data for 2007 show that there were
11,163 firms that operated for the entire
year. Of this total, 10,791 firms had
employment of 999 or fewer employees
and 372 had employment of 1000
employees or more. Thus under this
category and the associated small
business size standard, the Commission
estimates that the majority of wireless
telecommunications carriers (except
satellite) are small entities that may be
affected by our proposed action.
72. WCS Licensees. The Wireless
Communication Service in the 2305
2320 MHz and 23452360 MHz
frequency bands has flexible rules that
permit licensees in this service to
provide fixed, mobile, portable, and
radiolocation services. Licensees are
also permitted to provide satellite
digital audio radio services. The SBA
rules establish a size standard for
Wireless Telecommunications
Carriers, which encompasses business
entities engaged in radiotelephone
communications employing no more
E:\FR\FM\11FER1.SGM
11FER1
than 1,500 persons. There are currently
155 active WCS licenses held by 10
licensees. Of these, 7 licensees qualify
as small entities and hold a total of 50
licenses.
73. Radio and Television
Broadcasting and Wireless
Communications Equipment
Manufacturing. The Census Bureau
defines this category as follows: This
industry comprises establishments
primarily engaged in manufacturing
radio and television broadcast and
wireless communications equipment.
Examples of products made by these
establishments are: transmitting and
receiving antennas, cable television
equipment, GPS equipment, pagers,
cellular phones, mobile
communications equipment, and radio
and television studio and broadcasting
equipment. The SBA has developed a
small business size standard for Radio
and Television Broadcasting and
Wireless Communications Equipment
Manufacturing, which is: all such firms
having 750 or fewer employees.
According to Census Bureau data for
2007, there were a total of 939
establishments in this category that
operated for part or all of the entire year.
According to Census bureau data for
2007, there were a total of 939 firms in
this category that operated for the entire
year. Of this total, 912 had less than 500
employees and 17 had more than 1,000
employees. Thus, under that size
standard, the majority of firms can be
considered small.
74. Audio and Video Equipment
Manufacturing. The SBA has classified
the manufacturing of audio and video
equipment under in NAICS Codes
classification scheme as an industry in
which a manufacturer is small if it has
less than 750 employees. Data contained
in the 2007 U.S. Census indicate that
491 establishments operated in that
industry for all or part of that year. In
that year, 456 establishments had 99
employees or less; and 35 had more
than 100 employees. Thus, under the
applicable size standard, a majority of
manufacturers of audio and video
equipment may be considered small.
75. Description of Projected
Reporting, Recordkeeping, and Other
Compliance Requirements for Small
Entities. The Order on Reconsideration
imposed certain changes in projected
reporting, record keeping, and other
compliance requirements. These
changes affect small and large
companies equally. With respect to
coordination requirements in
circumstances where WCS licensees are
within certain distances from
and the Deep Space Network (DSN)
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operations in Goldstone, CA, the Order

on Reconsideration clarifies that WCS
licensees are required to coordinate
WCS base and fixed stations (except
fixed WCS CPE) with AMT and DSN
entities. WCS, AMT, and DSN entities
are required to cooperate in good faith
in order to minimize the likelihood of
harmful interference, make the most
effective use of facilities, as well as to
resolve actual instances of harmful
interference. Coordinating parties are
also required to share accurate and
relevant information in a timely and
efficient manner. Parties unable to reach
a mutually acceptable coordination
agreement may approach the Wireless
Telecommunications Bureau, which, in
cooperation with the Office of
Engineering and Technology and the
National Telecommunications and
Information Administration (NTIA),
may impose restrictions on operating
parameters such as the transmitter
power, antenna height, or area or hours
of operation of the stations. Deadlines
may also be imposed if it appears that
parties are unable to reach a mutually
acceptable arrangement within a
reasonable time period.
76. In the 2010 WCS R&O, the
Commission also required WCS and
SDARS licensees to share certain
technical information at least 10
business days before operating a new
base station or repeater, and at least five
business days before modifying an
existing facility. The Order on
Reconsideration excludes WCS stations
operating under 2 Watts equivalent
isotropically radiated power (EIRP) from
requirements. It also requires WCS
licensees to notify SDARS licensees
within 24 hours of station modifications
that would not increase the predicted
ground level power flux density by
more than 1 dB. To avoid multiple
modifications to WCS stations that
could result in a predicted aggregate
PFD increase that may negatively affect
SDARS receivers, although WCS
licensees may make 24 hour post
modification notifications as long as the
is not greater than 1 dB, if an SDARS
licensee demonstrates to the WCS
interference to SDARS receivers, the
WCS licensee must provide the SDARS
licensee with 5 days notice in advance
of additional modifications to WCS base
and fixed stations. However, the 1 dB
limit will not apply where a
parties specifies otherwise. The Order
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9617
on Reconsideration also clarified that

the WCS licensee inventory and SDARS
licensee notification requirements apply
to both WCS base and fixed stations
(except fixed WCS CPE).
77. The 2010 WCS R&O requires that
WCS licensees demonstrate compliance
with any revised performance
requirements by filing a construction
notification within 15 days of the
relevant benchmark and certifying that
they have met the applicable
performance requirements. The 2010
WCS R&O requires that each
construction notification should include
electronic coverage maps and
supporting documentation, which must
be truthful and accurate and must not
omit material information that is
necessary for the Commission to
determine compliance with its
performance requirements. Further, the
electronic coverage maps must clearly
and accurately depict the boundaries of
each license area (Regional Economic
Area Grouping, REAG, or Major
Economic Area, MEA) in the licensees
service territory, with REAG maps
depicting MEA boundaries, and MEA
maps depicting Economic Area
boundaries. The 2010 WCS R&O
provides that if the licensees signal
does not provide service to the entire
license area, the map must clearly and
accurately depict the boundaries of the
area or areas within each license area
not being served. These procedures
direct each licensee to file supporting
documentation certifying the type of
service it is providing for each REAG or
MEA within its license service territory
and the type of technology it is utilizing
to provide such service. Further, the
compliance procedures require the
supporting documentation to provide
the assumptions used to create the
coverage maps, including the
propagation model and the signal
strength necessary to provide service
with the licensees technology. The
Order on Reconsideration did not
modify any of these requirements.
78. Steps Taken to Minimize
Significant Economic Impact on Small
Entities, and Significant Alternatives
Considered. The RFA requires an
agency to describe any significant
alternatives that it has considered in
reaching its proposed approach, which
may include the following four
alternatives: (1) The establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance or reporting requirements
under the rule for small entities; (3) the
use of performance, rather than design
E:\FR\FM\11FER1.SGM
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9618
standards; and (4) an exemption from

coverage of the rule, or any part thereof,
for small entities.
79. The Commissions principal
objective in this proceeding was to
enable the provision of promising
mobile broadband services to the public
in the WCS spectrum to the maximum
extent practicable, while ensuring that
satellite radio operations are not
unreasonably impacted by the
Commissions actions. Adopting overly
stringent technical rules for WCS to
protect SDARS operations from
interference would preclude WCS
mobile operation, while liberalizing the
WCS rules too much would result in
harmful interference and disruption to
SDARS service. Such results would
cause significant adverse economic
impact on either WCS licensees, which
include small entities, or on SDARS
operations. Accordingly, the
Commission considered various
alternatives, in order to best provide
WCS licensees, including small-entity
WCS licensees, with the flexibility to
provide mobile service, while also
protecting against disruptions to SDARS
operations due to harmful interference.
80. The Order on Reconsideration
adopted a package of compromise
proposals from WCS licensee AT&T Inc.
and SDARS operator Sirius XM Radio
Inc. that were designed to facilitate the
efficient deployment and coexistence of
the WCS and SDARS and protect
adjacent SDARS operator Sirius XM
Radio Inc. and AMT users, and nearby
DSN operations, from harmful
interference.
81. WCS Mobile and Portable
(Handheld) Device Power Spectral
Density (PSD) Limits. The Order on
Reconsideration eliminated the 50
milliwatt per megahertz PSD limit for
WCS mobile and portable devices that
operate with bandwidths greater than or
equal to 5 megahertz and using
appropriate uplink (user device to base
station) transmission technologies.
Because the uplink (user device to base
station) transmission technologies being
considered for mobile broadband
service in the WCS spectrum spread the
signal power across the available
bandwidth, eliminating the PSD limit
for these devices will not increase the
SDARS receivers. In addition, without a
PSD limit for WCS mobile devices, WCS
licensees will not be forced to increase
the number of cell sites (i.e., base
stations installed) to ensure adequate
service, which would make it
economically unfeasible to deploy a
WCS mobile network.
82. WCS Performance Requirements.
Further, in the 2010 WCS R&O, the
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Commission adopted revised

performance requirements for WCS. The
Commission adopted enhanced
construction rules that replaced the
substantial service requirement
previously placed on WCS licensees
with specific population-based
benchmarks. In recognition of
difficulties that may arise in license
areas where WCS licensees must
coordinate their facilities with AMT
receive sites, the 2010 WCS R&O
reduced the level of construction
required in such markets. The
Commission sought to establish a
buildout requirement that is reasonable
and achievable for WCS licensees,
including small entities, but which
encourages rapid and meaningful
deployment of mobile broadband
services. The Commission considered
alternative performance benchmarks,
including requirements using shorter
timeframes, and lower percentages of
required construction. However, the
Commission concluded that other
alternatives would not strike the
appropriate balance. Further, with
respect to the performance rules, all
WCS entities are required to file
construction notifications to inform the
Commission that they have successfully
met the performance requirements
described above. The Order on
Reconsideration extended the time
period within which licensees must
meet the WCS interim and final
performance requirements to 48- and
78-months, respectively. Further,
because certain technical specifications
established in the 2010 WCS R&O may
have inadvertently hindered the ability
of licensees to deploy mobile broadband
services, the Order on Reconsideration
restarted the construction periods to
provide WCS licensees with the full 48and 78 month construction timeframes
to enable licensees to respond to the
revisions the Commission made to the
2.3 GHz WCS rules.
83. Report to Congress. The
Commission will send a copy of the
Order on Reconsideration, including
this Supplemental FRFA, in a report to
be sent to Congress pursuant to the
Congressional Review Act. In addition,
the Commission will send a copy of the
Order on Reconsideration, including
this Supplemental FRFA, to the Chief
Counsel for Advocacy of the SBA.
B. Supplemental Final Regulatory
Certification in IB Docket No. 9591
84. The Regulatory Flexibility Act of
1980, as amended (RFA) requires that a
prepared for rulemaking proceedings,
unless the agency certifies that the rule
will not have a significant economic
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Sfmt 4700
impact on a substantial number of small

entities. The RFA generally defines
small entity as having the same
meaning as the terms small business,
small organization, and small
governmental jurisdiction. In addition,
the term small business has the same
meaning as the term small business
concern under the Small Business Act.
A small business concern is one which:
(1) Is independently owned and
operated; (2) is not dominant in its field
of operation; and (3) satisfies any
additional criteria established by the
Small Business Administration (SBA).
85. The rules adopted in this Order on
Reconsideration affect providers of
Satellite Digital Audio Radio Service
(SDARS). With respect to providers of
SDARS, i.e. providers of a nationally
distributed subscription radio service,
no small entities are affected by the
rules adopted in this Order on
Reconsideration. SDARS is a satellite
service. The SBA has established a size
standard for Satellite
Telecommunications, which is that
any large satellite services provider
must have an annual revenue of $15.0
million. Currently, only a single
operator, Sirius XM Radio Inc. (Sirius
XM), holds licenses to provide SDARS,
which requires a great investment of
capital for operation. Sirius XM has
annual revenues in excess of $15.0
million. Because SDARS requires
significant capital, we believe it is
unlikely that a small entity as defined
by the Small Business Administration
would have the financial wherewithal to
become an SDARS licensee.
86. Therefore, since only one large
entity is affected by the rules adopted in
this Order on Reconsideration, we
certify that the requirements of the
Order on Reconsideration will not have
a significant economic impact on a
substantial number of small
entities. The Commission will send a
copy of the Order on Reconsideration,
including a copy of this final
certification, in a report to Congress
pursuant to the Small Business
Regulatory Enforcement Fairness Act of
1996, see 5 U.S.C. 801(a)(1)(A). In
addition, the Order on Reconsideration
and this certification will be sent to the
Chief Counsel for Advocacy of the Small
Business Administration, and will be
published in the Federal Register. See
5 U.S.C. 605(b).
C. Congressional Review Act
87. The Commission will send a copy
of this Order on Reconsideration in a
report to be sent to Congress and the
Government Accountability Office
Act, see 5 U.S.C. 801(a)(1)(A).
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11FER1
V. Ordering Clauses
88. Pursuant to 4(i), 7(a), 303(c),
303(f), 303(g), and 303(r), and 307 of the
Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 157(a),
303(c), 303(f), 303(g), 303(r), 307, the
Order on Reconsideration in WT Docket
No. 07293 and IB Docket No. 9591 is
hereby adopted.
89. The rule revisions adopted herein
will become effective March 13, 2013,
except for 25.263(b), 27.72(b), and
27.73(a), which contain new or
modified information collection
requirements that require approval by
the Office of Management and Budget
under the Paperwork Reduction Act and
will become effective after the
Commission publishes a notice in the
Federal Register announcing approval
of the effective date.
90. ARRLs Petition for Clarification
or Partial Reconsideration, filed
September 1, 2010, is granted in part
and denied in part, to the extent
provided herein.
91. AT&T, Inc.s Petition for Partial
Reconsideration, filed September 1,
2010, is granted in part and denied in
part, to the extent provided herein.
92. Sirius XMs Petition for Partial
Reconsideration and Clarification, filed
September 1, 2010, is granted in part
and denied in part, to the extent
provided herein.
93. Stratos Petition for Clarification,
filed September 1, 2010, IS GRANTED,
to the extent provided herein.
94. WCS Coalitions Petition for
Partial Reconsideration, filed September
1, 2010, is granted in part and denied
in part, to the extent provided herein.
95. WCS licensees are hereby directed
to provide Sirius XM with an inventory
of their fixed (except fixed Customer
Premises Equipment) station
infrastructure within March 13, 2013, of
this Order on Reconsideration in the
Federal Register.
96. Sirius XM is hereby directed to
provide potentially affected WCS
licensees with an inventory of its
terrestrial repeater infrastructure,
including the information set forth in
25.263(c)(2) for each repeater currently
deployed, within March 13, 2013, of
this Order on Reconsideration in the
Federal Register.
97. The performance periods for
licensees in the Wireless
Communications Service are hereby
reset and will recommence beginning 30
days after a summary of the Order on
Reconsideration is published in the
Federal Register.
98. Pursuant to 4(i) and 308 of the
Communications Act of 1934, 47 U.S.C.
154, 308, and 1.946 of the
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Commissions rules, 47 CFR 1.946, that

to obtain a renewal expectancy at their
July 21, 2017 renewal deadline, each 2.3
GHz Wireless Communications Service
licensee must certify, for each license
area, that they have maintained, or
exceeded, the level of coverage
demonstrated for that license area at the
48-month construction deadline. This
certification requirement and renewal
standard are subject to any superseding
or additional requirements or standards
that the Commission may adopt in its
ongoing rulemaking proceeding to
harmonize the renewal requirements
and standards for Wireless Radio
Services, WT Docket No. 10112.
99. The Consumer and Governmental
Affairs Bureau, Reference Information
Center, shall send a copy of this Order
on Reconsideration, including the
Flexibility Analysis and the
Flexibility Certification, to the Chief
Counsel for Advocacy of the Small
Business Administration.
100. The Commission SHALL SEND a
copy of this Order on Reconsideration,
including the Supplemental Final
Regulatory Flexibility Analysis and
Flexibility Certification, in a report to be
sent to Congress and the Government
Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
List of Subjects
47 CFR Part 25
Communications common carriers,
Communications equipment, Radio,
Reporting and recordkeeping
requirements, Satellites,
Telecommunications.
47 CFR Part 27
Communications common carriers,
Communications equipment,
Incorporation by reference, Radio,
Reporting and recordkeeping
requirements.
Gloria J. Miles,
Federal Register Liaison.
Rule Changes
For the reasons discussed, the Federal
Communications Commission amends
47 CFR parts 25 and 27 as follows:
PART 25SATELLITE
COMMUNICATIONS
1. The authority citation for part 25 is
revised to read as follows:
Authority: 47 U.S.C. 701744. Interprets or

applies sections 4, 301, 302, 303, 307, 309,
PO 00000
Frm 00045
Fmt 4700
Sfmt 4700
9619

amended, 47 U.S.C. 154, 301, 302a, 303, 307,
309, and 332, unless otherwise noted.
2. Section 25.202 is amended by

revising paragraph (h)(4) introductory
text to read as follows:
25.202 Frequencies, frequency tolerance,

and emission limitations.
*
*
*
*
(h)* * *
(4) For the purpose of this section, a
WCS licensee is potentially affected if it
is authorized to operate a base station in
the 23052315 MHz or 23502360 MHz
bands within 25 kilometers of a repeater
seeking to operate with an out of band
emission attenuation factor less than
those prescribed in paragraphs (h)(1) or
(2) of this section.
*
*
*
*
*
revising paragraph (d)(3) to read as
follows:
25.214 Technical requirements for space
stations in the satellite digital audio radio
service and associated terrestrial repeaters.
*
*
*
*
(d)* * *
(3) For the purpose of this section, a
WCS licensee is potentially affected if it
is authorized to operate a base station in
the 23052315 MHz or 23502360 MHz
bands within 25 kilometers of a repeater
seeking to operate with a power level
greater than that prescribed in
paragraph (d)(1) of this section.
revising the first sentence of paragraph
(b) introductory text, revising paragraph
(b)(1)(ii), adding paragraphs (b)(3)
through (6), and revising paragraph (e)
to read as follows:
25.263 Information sharing requirements
for SDARS terrestrial repeater operators.
*
*
*
*
(b) Notice requirements. SDARS
licensees that intend to operate a new
terrestrial repeater must, before
commencing such operation, provide 10
business days prior notice to all
potentially affected Wireless
Communications Service (WCS)
licensees. * * *
(1) * * *
(ii) Is authorized to operate base
station in the 23152320 MHz or 2345
2350 MHz bands in the same Regional
Economic Area Grouping (REAG) as that
in which the terrestrial repeater is to be
located;
*
*
*
*
*
(3) For modifications other than
changes in location, a licensee may
provide notice within 24 hours after the
modified operation if the modification
does not result in a predicted increase
E:\FR\FM\11FER1.SGM
11FER1
9620
of the power flux density (PFD) at

ground level by more than 1 dB since
the last advance notice was given. If a
demonstration is made by the WCS
licensee that such modifications may
cause harmful interference to WCS
receivers, SDARS licensees will be
required to provide notice 5 business
days in advance of additional repeater
modifications.
(4) SDARS repeaters operating below
2 watts equivalent isotropically radiated
power (EIRP) are exempt from the notice
requirements set forth in this paragraph.
(5) SDARS licensees are encouraged
to develop separate coordination
agreements with WCS licensees to
facilitate efficient deployment of and
coexistence between each service. To
the extent the provisions of any such
coordination agreement conflict with
the requirements set forth herein, the
procedures established under a
coordination agreement will control.
SDARS licensees must maintain a copy
of any coordination agreement with a
WCS license in their station files and
disclose it to prospective assignees,
transferees, or spectrum lessees and,
upon request, to the Commission.
(6) SDARS and WCS licensees may
enter into agreements regarding
alternative notification procedures.
*
*
*
*
*
(e) Duty to cooperate. SDARS
licensees must cooperate in good faith
in the selection and use of new repeater
sites to reduce interference and make
the most effective use of the authorized
facilities. SDARS licensees should
provide WCS licensees as much lead
time as practicable to provide ample
time to conduct analyses and
opportunity for prudent repeater site
selection prior to SDARS licensees
entering into real estate and tower
leasing or purchasing agreements.
Licensees of stations suffering or
causing harmful interference must
cooperate in good faith and resolve such
problems by mutually satisfactory
arrangements. If the licensees are unable
to do so, the International Bureau, in
consultation with the Office of
Wireless Telecommunications Bureau,
will consider the actions taken by the
parties to mitigate the risk of and
remedy any alleged interference. In
determining the appropriate action, the
Bureau will take into account the nature
and extent of the interference and act
promptly to remedy the interference.
The Bureau may impose restrictions on
SDARS licensees, including specifying
the transmitter power, antenna height,
or other technical or operational
measures to remedy the interference,
VerDate Mar<15>2010
14:06 Feb 08, 2013
Jkt 229001
and will take into account previous

measures by the licensees to mitigate
the risk of interference.
PART 27MISCELLANEOUS
WIRELESS COMMUNICATIONS
SERVICES
5. The authority citation for part 27 is
Authority: 47 U.S.C. 154, 301, 302a, 303,

307, 309, 332, 336, and 337, unless otherwise
noted.

revising paragraphs (p)(1), (2), (3), and
(5) to read as follows:
27.14 Construction requirements;

Criteria for renewal.
*
*
*
*
(p) * * *
(1) For mobile and point-tomultipoint systems in Blocks A and B,
and point-to-multipoint systems in
Blocks C and D, a licensee must provide
reliable signal coverage and offer service
to at least 40 percent of the license
areas population by March 13, 2017,
and to at least 75 percent of the license
areas population by September 13,
2019. If, when filing the construction
notification required under 1.946(d) of
this chapter, a WCS licensee
demonstrates that 25 percent or more of
the license areas population for Block
A, B or D is within a coordination zone
as defined by 27.73(a) of the rules, the
foregoing population benchmarks are
reduced to 25 and 50 percent,
respectively. The percentage of a license
areas population within a coordination
zone equals the sum of the Census Block
Centroid Populations within the area,
divided by the license areas total
population.
(2) For point-to-point fixed systems,
except those deployed in the Gulf of
Mexico license area, a licensee must
construct and operate a minimum of 15
license area by March 13, 2017, and 30
licensed area by September 13, 2019.
The exact link requirement is calculated
by dividing a license areas total
population by 67,000 and 33,500 for the
respective milestones, and then
rounding upwards to the next whole
number. For a link to be counted
towards these benchmarks, both of its
endpoints must be located in the license
area. If only one endpoint of a link is
located in a license area, it can be
counted as a one- half link towards the
benchmarks.
(3) For point-to-point fixed systems
deployed on any spectrum block in the
PO 00000
Frm 00046
Fmt 4700
Sfmt 4700
Gulf of Mexico license area, a licensee

must construct and operate a minimum
of 15 point-to-point links by March 13,
2017, and a minimum of 15 point-topoint links by September 13, 2019.
*
*
*
*
*
(5) If an initial authorization for a
license area is granted after March 13,
2013, then the applicable benchmarks in
paragraphs (p)(1), (2) and (3) of this
section must be met within 48 and 78
months, respectively, of the initial
authorization grant date.
*
*
*
*
*
removing paragraph (a)(1)(iii) and
revising paragraphs (a)(2) and (3) to read
as follows:
27.50
Power limits and duty cycle.
(a) * * *
(2) Fixed customer premises
equipment stations. For fixed customer
premises equipment (CPE) stations
transmitting in the 23052320 MHz
band or in the 23452360 MHz band,
the peak EIRP must not exceed 20 watts
within any 5 megahertz of authorized
bandwidth. Fixed CPE stations
band or in the 23452360 MHz band
must employ automatic transmit power
control when operating so the stations
operate with the minimum power
necessary for successful
communications. The use of outdoor
antennas for CPE stations or outdoor
CPE station installations operating with
2 watts per 5 megahertz or less average
EIRP using the stepped emissions mask
prescribed in 27.53(a)(3) is prohibited
except if professionally installed in
locations removed by 20 meters from
roadways or in locations where it can be
shown that the ground power level of
-44 dBm in the A or B blocks or -55 dBm
in the C or D blocks will not be
exceeded at the nearest road location.
The use of outdoor antennas for fixed
CPE stations operating with 2 watts per
5 megahertz or less average EIRP and
the emissions mask prescribed in
27.53(a)(1)(i) through (iii) is permitted
in all locations. For fixed WCS CPE
using TDD technology, the duty cycle
must not exceed 38 percent;
(3) Mobile and portable stations. (i)
For mobile and portable stations
band or the 23502360 MHz band, the
average EIRP must not exceed 50
milliwatts within any 1 megahertz of
authorized bandwidth, except that for
mobile and portable stations compliant
with 3GPP LTE standards or another
advanced mobile broadband protocol
that avoids concentrating energy at the
edge of the operating band the average
E:\FR\FM\11FER1.SGM
11FER1
EIRP must not exceed 250 milliwatts
within any 5 megahertz of authorized
bandwidth but may exceed 50
milliwatts within any 1 megahertz of
authorized bandwidth. For mobile and
portable stations using time division
duplexing (TDD) technology, the duty
cycle must not exceed 38 percent in the
23052315 MHz and 23502360 MHz
bands. Mobile and portable stations
using FDD technology are restricted to
band. Power averaging shall not include
intervals in which the transmitter is off.
(ii) Mobile and portable stations are
not permitted to transmit in the 2315
2320 MHz and 23452350 MHz bands.
(iii) Automatic transmit power
control. Mobile and portable stations
band or in the 23502360 MHz band
must employ automatic transmit power
control when operating so the stations
operate with the minimum power
necessary for successful
communications.
(iv) Prohibition on external vehiclemounted antennas. The use of external
vehicle-mounted antennas for mobile
and portable stations transmitting in the
23052315 MHz band or the 23502360
MHz band is prohibited.
*
*
*
*
*
revising paragraphs (a)(1)(i) through
(iii), (a)(2)(i) through (iii), and (a)(3)
through (5) to read as follows:
27.53
Emission limits.
(a) * * *
(1) * * *
(i) By a factor of not less than 43 + 10
log (P) dB on all frequencies between
2305 and 2320 MHz and on all
frequencies between 2345 and 2360
MHz that are outside the licensed
band(s) of operation, and not less than
between 2320 and 2345 MHz;
(ii) By a factor of not less than 43 +
10 log (P) dB on all frequencies between
2300 and 2305 MHz, 70 + 10 log (P) dB
on all frequencies between 2287.5 and
2300 MHz, 72 + 10 log (P) dB on all
frequencies between 2285 and 2287.5
MHz, and 75 + 10 log (P) dB below 2285
MHz;
(iii) By a factor of not less than 43 +
2360 and 2362.5 MHz, 55 + 10 log (P)
dB on all frequencies between 2362.5
and 2365 MHz, 70 + 10 log (P) dB on
all frequencies between 2365 and 2367.5
MHz, 72 + 10 log (P) dB on all
frequencies between 2367.5 and 2370
MHz, and 75 + 10 log (P) dB above 2370
MHz.
(2) * * *
VerDate Mar<15>2010
14:06 Feb 08, 2013
Jkt 229001

band(s) of operation, and not less than
between 2320 and 2345 MHz;
2300 and 2305 MHz, 70 + 10 log (P) dB
on all frequencies between 2287.5 and
frequencies between 2285 and 2287.5
MHz;
2360 and 2362.5 MHz, 55 + 10 log (P)
dB on all frequencies between 2362.5
and 2365 MHz, 70 + 10 log (P) dB on
all frequencies between 2365 and 2367.5
frequencies between 2367.5 and 2370
MHz, and 75 + 10 log (P) dB above 2370
MHz.
(3) For fixed CPE stations operating in
the 23052320 MHz and 23452360
MHz bands transmitting with 2 watts
per 5 megahertz average EIRP or less:
band(s) of operation, not less than 55 +
2320 and 2324 MHz and between 2341
and 2345 MHz, not less than 61 + 10 log
(P) dB on all frequencies between 2324
and 2328 MHz and between 2337 and
2341 MHz, and not less than 67 + 10 log
(P) dB on all frequencies between 2328
and 2337 MHz;
2300 and 2305 MHz, 55 + 10 log (P) dB
on all frequencies between 2296 and
MHz;
2360 and 2365 MHz, and not less than
70 + 10 log (P) dB above 2365 MHz.
(4) For mobile and portable stations
operating in the 23052315 MHz and
23502360 MHz bands:
(i) By a factor of not less than: 43 +
band(s) of operation, not less than 55 +
PO 00000
Frm 00047
Fmt 4700
Sfmt 4700
9621

MHz, not less than 61 + 10 log (P) dB
2328 MHz and on all frequencies
between 2337 and 2341 MHz, and not
less than 67 + 10 log (P) dB on all
MHz;
2300 and 2305 MHz, 55 + 10 log (P) dB
MHz;
2360 and 2365 MHz, and not less than
70 + 10 log (P) dB above 2365 MHz.
(5) Measurement procedure.
Compliance with these rules is based on
the use of measurement instrumentation
employing a resolution bandwidth of 1
MHz or greater. However, in the 1 MHz
bands immediately outside and adjacent
to the channel blocks at 2305, 2310,
2315, 2320, 2345, 2350, 2355, and 2360
MHz, a resolution bandwidth of at least
1 percent of the emission bandwidth of
the fundamental emission of the
transmitter may be employed. A
narrower resolution bandwidth is
permitted in all cases to improve
measurement accuracy provided the
measured power is integrated over the
full required measurement bandwidth
(i.e., 1 MHz). The emission bandwidth
is defined as the width of the signal
between two points, one below the
carrier center frequency and one above
the carrier center frequency, outside of
which all emissions are attenuated at
least 26 dB below the transmitter power.
*
*
*
*
*
9. Section 27.64 is amended by adding
paragraph (d) to read as follows:
27.64
Protection from interference.
* * *
(d) Harmful interference to SDARS
operations requiring resolution. The
following conditions will be presumed
to constitute harmful interference to
SDARS operations from WCS operations
in the 23052320 MHz and 23452360
MHz bands and require WCS operators
to work cooperatively with SDARS
operators to address areas where such
power levels are exceeded and harmful
interference occurs:
(1) A WCS ground signal level greater
than -44 dBm in the upper or lower A
or B block, or -55 dBm in the C or D
block, present at a location on a
roadway, where a test demonstrates that
E:\FR\FM\11FER1.SGM
11FER1
9622
SDARS service would be muted over a

road distance of greater than 50 meters;
or
(2) A WCS ground signal level
exceeding -44 dBm in the upper or
lower A or B block, or -55 dBm in the
C or D block on a test drive route, which
is mutually agreed upon by the WCS
licensee and the SDARS licensee, for
more than 1 percent of the cumulative
surface road distance on that drive
route, where a test demonstrates that
SDARS service would be muted over a
cumulative road distance of greater than
0.5 percent (incremental to any muting
present prior to use of WCS frequencies
in the area of that drive test).
revising the introductory text,
paragraphs (a), (b), (c)(2)(i), (c)(3), and
(e) to read as follows:
27.72
Information sharing requirements.
This section requires WCS licensees

in the 23052320 MHz and 23452360
MHz bands to share information
regarding the location and operation of
base and fixed stations (except fixed
customer premises equipment) with
(SDARS) licensees in the 23202345
MHz band. Section 25.263 of this
chapter requires SDARS licensees in the
23202345 MHz band to share
information regarding the location and
operation of terrestrial repeaters with
WCS licensees in the 23052320 MHz
and 23452360 MHz bands. WCS
licensees are encouraged to develop
separate coordination agreements with
SDARS licensees to facilitate efficient
deployment of and coexistence between
each service. To the extent the
provisions of any such coordination
agreement conflict with the
requirements set forth herein, the
procedures established under a
coordination agreement will control.
WCS licensees must maintain a copy of
any coordination agreement with an
SDARS licensee in their station files and
disclose it to prospective assignees,
transferees, or spectrum lessees and,
upon request, to the Commission.
(a) Sites and frequency selections.
WCS licensees must select base and
fixed station sites and frequencies, to
the extent practicable, to minimize the
possibility of harmful interference to
operations in the SDARS 23202345
MHz band.
(b) Prior notice periods. WCS
licensees that intend to operate a base
or fixed station must, before
commencing such operation, provide 10
business days prior notice to all SDARS
licensees. WCS licensees that intend to
modify an existing station must, before
commencing such modified operation,
VerDate Mar<15>2010
14:06 Feb 08, 2013
Jkt 229001
provide 5 business days prior notice to

all SDARS licensees. For the purposes
of this section, a business day is defined
by 1.4(e)(2) of this chapter.
(1) For modifications other than
changes in location, a licensee may
provide notice within 24 hours after the
modified operation if the modification
does not result in a predicted increase
of the power flux density (PFD) at
ground level by more than 1 dB since
the last advance notice was given. If a
demonstration is made by the SDARS
licensee that such modifications may
cause harmful interference to SDARS
receivers, WCS licensees will be
required to provide notice 5 business
days in advance of additional station
modifications.
(2) WCS base and fixed stations
operating below 2 watts equivalent
isotropically radiated power (EIRP) are
exempt from the notice requirements set
forth in this paragraph.
(3) WCS and SDARS licensees may
enter into agreements regarding
alternative notification procedures.
(c) * * *
(2) * * *
(i) The coordinates of the proposed
base or fixed stations to an accuracy of
no less than 1 second latitude and
longitude;
*
*
*
*
*
(3) A WCS licensee operating base or
fixed stations must maintain an accurate
and up-to-date inventory of its stations,
27.72(c)(2), which shall be available
upon request by the Commission.
*
*
*
*
*
(e) Duty to cooperate. WCS licensees
must cooperate in good faith in the
selection and use of new station sites
and new frequencies to reduce
interference and make the most effective
use of the authorized facilities. WCS
licensees should provide SDARS
licensees as much lead time as
practicable to provide ample time to
conduct analyses and opportunity for
prudent base station site selection prior
to WCS licensees entering into real
estate and tower leasing or purchasing
agreements. WCS licensees must have
sufficient operational flexibility in their
network design to implement one or
more technical solutions to remedy
harmful interference. Licensees of
stations suffering or causing harmful
interference, as defined in 27.64(d),
must cooperate in good faith and resolve
such problems by mutually satisfactory
arrangements. If the licensees are unable
to do so, the Wireless
Telecommunications Bureau, in
consultation with the Office of
PO 00000
Frm 00048
Fmt 4700
Sfmt 4700
International Bureau, will consider the

actions taken by the parties to mitigate
the risk of and remedy any alleged
interference. In determining the
appropriate action, the Bureau will take
into account the nature and extent of the
interference and act promptly to remedy
the interference. The Bureau may
impose restrictions on WCS licensees,
including specifying the transmitter
power, antenna height, or other
technical or operational measures to
remedy the interference, and will take
into account previous measures by the
licensees to mitigate the risk of
interference.
revising the introductory text and
paragraphs (a), (b), and (c) to read as
follows:
27.73 WCS, AMT, and Goldstone
coordination requirements.
This section requires Wireless

Communications Services (WCS)
licensees in the 23052320 MHz and
23452360 MHz bands, respectively, to
coordinate the deployment of base and
fixed stations (except fixed customer
premises equipment) with the
Goldstone, CA Deep Space Network
(DSN) facility in the 22902300 MHz
band and with Aeronautical Mobile
Telemetry (AMT) facilities in the 2360
2395 MHz band; and to take all
practicable steps necessary to minimize
the risk of harmful interference to AMT
and DSN facilities.
(a) WCS licensees operating base and
fixed stations in the 23452360 MHz
band must, prior to operation of such
stations, achieve a mutually satisfactory
coordination agreement with the AMT
entity(ies) (i.e., FCC licensee(s) and/or
Federal operator(s)) for any AMT
receiver facility within 45 kilometers or
radio line of sight, whichever distance
is larger, of the intended WCS base or
fixed station location. The coordinator
for the assignment of flight test
frequencies in the 23602390 MHz
band, Aerospace and Flight Test Radio
Coordination Council (AFTRCC) or
successors of AFTRCC, will facilitate a
mutually satisfactory coordination
agreement between the WCS licensee(s)
and AMT entity(ies) for existing AMT
receiver sites. The locations of current
Federal and non-Federal AMT receiver
sites may be obtained from AFTRCC at
Post Office Box 12822 Wichita, KS
672772822, (316) 9468826, or
successor frequency coordinators of
AFTRCC. Such coordination agreement
shall provide protection to existing
AMT receiver stations consistent with
International Telecommunication Union
(ITU) Recommendation ITUR M.1459,
Protection criteria for telemetry
E:\FR\FM\11FER1.SGM
11FER1
systems in the aeronautical mobile
service and mitigation techniques to
facilitate sharing with geostationary
broadcasting-satellite and mobilesatellite services in the frequency bands
1 4521 525 MHz and 2 3102 360 MHz
May 2000 edition, adopted May 2000,
as adjusted using generally accepted
engineering practices and standards to
take into account the local conditions
and operating characteristics of the
applicable AMT and WCS facilities.
This ITU document is incorporated by
reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51 and approved
by the Director of Federal Register.
Copies of the recommendation may be
obtained from ITU, Place des Nations,
1211 Geneva 20, Switzerland, or online
at http://www.itu.int/en/publications/
Pages/default.aspx. You may inspect a
copy at the Federal Communications
Commission, 445 12th Street SW.,
Washington, DC 20554, or at the
National Archives and Records
Administration (NARA). For
information on the availability of this
material at NARA, call 2027416030,
or go to: http://www/archives.gov/
federal_ register/
code_of_federal_regulations/
ibr_locations.html.
(b) WCS licensees operating base and
fixed stations in the 23052320 MHz
band must, prior to operation of such
stations, achieve a mutually satisfactory
coordination agreement with the
National Aeronautics and Space
Administration (NASA) within 145
kilometers of the Goldstone, CA earth
station site (352533 N, 1165323 W).
(c) After base or fixed station
operations commence, upon receipt of a
complaint of harmful interference, the
WCS licensee(s) receiving the
complaint, no matter the distance from
the NASA Goldstone, CA earth station
or from an AMT site, operating in the
23052320 or 23452360 MHz bands,
respectively, shall take all practicable
steps to immediately eliminate the
interference.
*
*
*
*
*
[FR Doc. 201302907 Filed 2813; 8:45 am]
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
49 CFR Part 571
[Docket No. NHTSA20130011]
RIN 2127AL11
Federal Motor Vehicle Safety

Standards; Air Brake Systems
National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation.
ACTION: Final rule; response to petition
for reconsideration.
AGENCY:
On July 27, 2009, NHTSA

published a final rule that amended the
Federal motor vehicle safety standard
for air brake systems by requiring
substantial improvements in stopping
distance performance on new truck
tractors. This final rule responds to
petitions for reconsideration of a July
27, 2011 final rule that slightly relaxed
the stopping distance requirement for
typical loaded tractors tested from an
initial speed of 20 mph. NHTSA is
granting the request to remove the
stopping distance requirements for
speeds of 20 mph and 25 mph and
denying the request to relax the
stopping distance requirements for
speeds between 30 mph and 55 mph.
DATES: This final rule is effective
February 11, 2013.
Petitions for reconsideration must be
received not later than March 28, 2013.
ADDRESSES: Petitions for reconsideration
should refer to the docket number and
must be submitted to: Administrator,
Administration, 1200 New Jersey
Avenue SE., Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT: For
technical issues, you may contact
George Soodoo, Office of Crash
Avoidance Standards, by telephone at
(202) 3664931, and by fax at (202) 366
7002.
For legal issues, you may contact
David Jasinski, Office of the Chief
Counsel, by telephone at (202) 366
2992, and by fax at (202) 3663820.
You may send mail to both of these
officials at the National Highway Traffic
Safety Administration, 1200 New Jersey
Avenue SE., Washington, DC 20590.
SUMMARY:
I. Background of the Stopping Distance

Requirement
II. Petition for Reconsideration
III. Response to Petition
A. Stopping Distance Requirements at
Speeds Between 30 and 55 MPH
14:06 Feb 08, 2013
Jkt 229001
PO 00000
Frm 00049
Fmt 4700
B. Stopping Distance Requirements at

Speeds of 20 and 25 MPH
IV. Administrative Procedure Act
Requirements
V. Rulemaking Analyses and Notices
I. Background of the Stopping Distance

Requirement
On July 27, 2009, NHTSA published
a final rule in the Federal Register
amending Federal Motor Vehicle Safety
Standard (FMVSS) No. 121, Air Brake
Systems, to require improved stopping
distance performance for heavy truck
tractors.1 This rule reduced the
maximum allowable stopping distance,
from 60 mph, from 355 feet to 250 feet
for the vast majority of loaded heavy
truck tractors. For a small minority of
loaded very heavy tractors, the
maximum allowable stopping distance
was reduced from 355 feet to 310 feet.
Having come to the conclusion that
modifications needed for typical threeaxle tractors to meet the improved
requirements were relatively
straightforward, NHTSA provided two
years lead time for those vehicles to
comply with the new requirements.
These typical three-axle tractors
comprise approximately 82 percent of
the total fleet of heavy tractors. The
agency concluded that other tractors,
which are produced in far fewer
numbers and may need additional work
to ensure stability and control while
braking, would need more lead time to
meet the requirements. Due to extra
time needed to design, test, and validate
these vehicles, which included two-axle
tractors and severe service tractors, the
agency allowed four years lead time for
these tractors to meet the improved
stopping distance requirements.
Requirements in FMVSS No. 121
provide that if the speed attainable by
a vehicle in two miles is less than 60
mph, the speed at which the vehicle
shall meet the specified stopping
distances is four to eight mph less than
the speed attainable in two miles. In the
July 2009 final rule, the agency used an
equation to derive the required stopping
distances for vehicles with initial
speeds of less than 60 mph.2
St = (12 Vo tr) + ((12) Vo2/af)((1/24) af
tr 2)
Where:
St = Total stopping distance in feet
Vo = Initial Speed in ft/sec
tr = Air pressure rise time in seconds
af = Steady-state deceleration in ft/sec2
For the final rule, the agency selected an

air pressure rise time of 0.45 seconds,
Table of Contents
VerDate Mar<15>2010
9623
Sfmt 4700
1 74 FR 37122; Docket No. NHTSA20090083

0001.
2 The complete derivation for this equation was
included in the docket. See Docket No. NHTSA
2005214620039, at 1822.
E:\FR\FM\11FER1.SGM
11FER1
13139
SECURITIES AND EXCHANGE
COMMISSION
DEPARTMENT OF STATE
[File No. 5001]
Additional Designation of A North

Korean Entity and Two North Korean
Individuals Pursuant to Executive
Order 13382
[Public Notice 8198]
In the Matter of Digital Video Systems,

Inc., Geocom Resources, Inc., and
GoldMountain Exploration Corp., and
Real Data, Inc. (a/k/a Galtech
Semiconductor Materials Corporation)
February 22, 2013.
Order of Suspension of Trading
It appears to the Securities and

Exchange Commission that there is a
lack of current and accurate information
concerning the securities of Digital
Video Systems, Inc. because it has not
filed any periodic reports since the
period ended September 30, 2005.
concerning the securities of Geocom
Resources, Inc. because it has not filed
any periodic reports since the period
ended March 30, 2009.
concerning the securities of
GoldMountain Exploration Corp.
because it has not filed any periodic
reports since the period ended
December 31, 2007.
concerning the securities of Real Data,
Inc. (a/k/a Galtech Semiconductor
Materials Corporation), because it has
not filed any periodic reports since the
period ended December 31, 2004.
The Commission is of the opinion that
the public interest and the protection of
investors require a suspension of trading
in the securities of the above-listed
companies. Therefore, it is ordered,
pursuant to Section 12(k) of the
Securities Exchange Act of 1934, that
trading in the securities of the abovelisted companies is suspended for the
period from 9:30 a.m. EST on February
22, 2013, through 11:59 p.m. EST on
March 7, 2013.
By the Commission.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 201304506 Filed 22213; 11:15 am]
VerDate Mar<15>2010
16:35 Feb 25, 2013
Jkt 229001
Department of State.
Designation of the Korean
Committee for Space Technology, Paek
Chang-Ho, and Chang Myong-Chin
Pursuant to E.O. 13382.
AGENCY:
ACTION:
SUMMARY: Pursuant to the authority in

section 1(ii) of Executive Order 13382,
Blocking Property of Weapons of Mass
Destruction Proliferators and Their
Supporters, the State Department, in
consultation with the Secretary of the
Treasury and the Attorney General, has
determined that the Korean Committee
for Space Technology, as well as two
individuals, Paek Chang-Ho and Chang
Myong-Chin, have engaged, or
attempted to engage, in activities or
transactions that have materially
contributed to, or pose a risk of
materially contributing to, the
proliferation of weapons of mass
destruction or their means of delivery
(including missiles capable of delivering
such weapons), including any efforts to
manufacture, acquire, possess, develop,
transport, transfer or use such items, by
any person or foreign country of
proliferation concern.
DATES: The designation by the Under
Secretary of State for Arms Control and
International Security of the entity
identified in this notice pursuant to
Executive Order 13382 is effective on
January 24, 2013.
Director, Office of Counterproliferation
Initiatives, Bureau of International
Security and Nonproliferation,
Department of State, Washington, DC
20520, tel.: 2026475193.
Background:
On June 28, 2005, the President,
invoking the authority, inter alia, of the
International Emergency Economic
Powers Act (50 U.S.C. 17011706)
(IEEPA), issued Executive Order
13382 (70 FR 38567, July 1, 2005) (the
Order), effective at 12:01 a.m. eastern
daylight time on June 30, 2005. In the
Order the President took additional
steps with respect to the national
emergency described and declared in
Executive Order 12938 of November 14,
1994, regarding the proliferation of
weapons of mass destruction and the
means of delivering them.
Section 1 of the Order blocks, with
certain exceptions, all property and
interests in property that are in the
PO 00000
Frm 00126
Fmt 4703
Sfmt 4703
United States, or that hereafter come

within the United States or that are or
hereafter come within the possession or
control of United States persons, of: (1)
The persons listed in the Annex to the
Order; (2) any foreign person
determined by the Secretary of State, in
Treasury, the Attorney General, and
other relevant agencies, to have
engaged, or attempted to engage, in
activities or transactions that have
materially contributed to, or pose a risk
of materially contributing to, the
proliferation concern; (3) any person
determined by the Secretary of the
Treasury, in consultation with the
Secretary of State, the Attorney General,
and other relevant agencies, to have
provided, or attempted to provide,
financial, material, technological or
other support for, or goods or services
in support of, any activity or transaction
described in clause (2) above or any
person whose property and interests in
property are blocked pursuant to the
Order; and (4) any person determined
by the Secretary of the Treasury, in
consultation with the Secretary of State,
the Attorney General, and other relevant
agencies, to be owned or controlled by,
or acting or purporting to act for or on
behalf of, directly or indirectly, any
Order.
Information on the additional
designees is as follows:
Korean Committee For Space
Technology
A.K.A. DPRK Committee for Space
Technology
A.K.A. Department of Space Technology
of North Korea
A.K.A. Committee for Space Technology
A.K.A. KCST
Location: Pyongyang, North Korea
Paek ChangHo
A.K.A. Pak Chang-Ho
A.K.A. Paek Chang-Ho
Passport: 381420754
Passport Date of Issue: 7 December 2011
Passport Date of Expiration: 7 December
2016
D.O.B. 18 June 1964
P.O.B. Kaesong, DPRK
Chang MyongChin
A.K.A. Jang Myong-Jin
D.O.B. 1966
E:\FR\FM\26FEN1.SGM
26FEN1
13140
Alt. D.O.B. 1965

Rose Gottemoeller,
Under Secretary for Arms Control and
International Security, Department of State,
Acting.
[FR Doc. 201304423 Filed 22513; 8:45 am]
DEPARTMENT OF STATE
Additional Designation of Amr

Armanazi Pursuant to Executive Order
13382
Department of State.
Designation of Amr Armanazi
Pursuant to E.O. 13382.
AGENCY:
ACTION:
SUMMARY: Pursuant to the authority in

section 1(ii) of Executive Order 13382,
Blocking Property of Weapons of Mass
Destruction Proliferators and Their
Supporters, the State Department, in
Treasury and the Attorney General, has
determined that Amr Armanazi, has
proliferation concern.
DATES: The designation by the Acting
Under Secretary of State for Arms
Control and International Security of the
entity identified in this notice pursuant
to Executive Order 13382 is effective on
September 18, 2012.
Director, Office of Counterproliferation
Initiatives, Bureau of International
Security and Nonproliferation,
Department of State, Washington, DC
20520, tel.: 2026475193.
Background
On June 28, 2005, the President,
invoking the authority, inter alia, of the
International Emergency Economic
Powers Act (50 U.S.C. 17011706)
(IEEPA), issued Executive Order
13382 (70 FR 38567, July 1, 2005) (the
Order), effective at 12:01 a.m. eastern
daylight time on June 30, 2005. In the
Order the President took additional
steps with respect to the national
emergency described and declared in
Executive Order 12938 of November 14,
1994, regarding the proliferation of
VerDate Mar<15>2010
16:35 Feb 25, 2013
Jkt 229001
weapons of mass destruction and the

means of delivering them.
Section 1 of the Order blocks, with
certain exceptions, all property and
interests in property that are in the
United States, or that hereafter come
within the United States or that are or
hereafter come within the possession or
control of United States persons, of: (1)
The persons listed in the Annex to the
Order; (2) any foreign person
determined by the Secretary of State, in
Treasury, the Attorney General, and
other relevant agencies, to have
proliferation concern; (3) any person
determined by the Secretary of the
Treasury, in consultation with the
Secretary of State, the Attorney General,
and other relevant agencies, to have
provided, or attempted to provide,
financial, material, technological or
other support for, or goods or services
in support of, any activity or transaction
described in clause (2) above or any
Order; and (4) any person determined
by the Secretary of the Treasury, in
consultation with the Secretary of State,
the Attorney General, and other relevant
agencies, to be owned or controlled by,
or acting or purporting to act for or on
behalf of, directly or indirectly, any
Order.
Information on the additional
designee is as follows:
AMR Armanazi
A.K.A. Amr Muhammad Najib AlArmanazi
A.K.A. Amr Najib Armanazi
DOB: 07 FEB 1944
Dated: September 14, 2012.
Rose Gottemoeller,
Acting Under Secretary for Arms Control and
International Security, Department of State.
[FR Doc. 201304418 Filed 22513; 8:45 am]
PO 00000
Frm 00127
Fmt 4703
Sfmt 4703
DEPARTMENT OF STATE
60-Day Notice of Proposed Information

Collection: Evacuee Manifest and
Promissory Note
Notice of request for public
comments.
ACTION:
SUMMARY: The Department of State is

seeking Office of Management and
Budget (OMB) approval for the
information collection described below.
In accordance with the Paperwork
Reduction Act of 1995, we are
requesting comments on this collection
from all interested individuals and
organizations. The purpose of this
notice is to allow 60 days for public
comment preceding submission of the
collection to OMB.
DATES: The Department will accept
comments from the public up to April
29, 2013.
ADDRESSES: You may submit comments
by any of the following methods:
Web: Persons with access to the
Internet may use the Federal Docket
Management System (FDMS) to
comment on this notice by going to
www.Regulations.gov. You can search
for the document by entering Public
Notice #### in the Search bar. If
necessary, use the Narrow by Agency
filter option on the Results page.
Email: mailto: Ask-OCSL-PublicInquiries@state.gov.
Mail: (paper, disk, or CDROM
submissions): U.S. Department of State,
CA/OCS/L, SA29, 4th Floor,
Washington, DC 200373202.
Fax: 2027369111.
Hand Delivery or Courier: U.S.
Department of State, CA/OCS/L 2100
Pennsylvania Avenue, 4th Floor,
You must include the DS form
number (if applicable), information
collection title, and OMB control
number in any correspondence.
Direct requests for additional
information regarding the collection
listed in this notice, including requests
for copies of the proposed information
collection and supporting documents, to
Derek A. Rivers, Bureau of Consular
Affairs, Overseas Citizens Services (CA/
OCS/L), U.S. Department of State, SA
29, 4th Floor, Washington, DC 20037
3202, who may be reached at mailto:
Ask-OCSL-Public-Inquiries@state.gov.
SUPPLEMENTARY INFORMATION: Title of
Information Collection: Evacuee
Manifest and Promissory Note.
OMB Control Number: 1405XXXX.
Type of Request: New.
E:\FR\FM\26FEN1.SGM
26FEN1
14920
Federal Register / Vol. 78, No. 46 / Friday, March 8, 2013 / Rules and Regulations
COMMISSION
47 CFR Parts 2 and 25
Earth Stations Aboard Aircraft

Communicating With Fixed-Satellite
Service Geostationary-Orbit Space
Stations
Commission.
ACTION: Final rule.
tkelley on DSK3SPTVN1PROD with RULES
AGENCY:
SUMMARY: In this Report and Order, the

(Commission) provides for the efficient
licensing of two-way in-flight
broadband services, including Internet
access, to passengers and flight crews
aboard commercial airliners and private
aircraft. Specifically, the Report and
Order establishes technical and
licensing rules for Earth Stations Aboard
Aircraft (ESAA), i.e., earth stations on
aircraft communicating with FixedSatellite Service (FSS) geostationaryorbit (GSO) space stations operating in
the 10.9511.2 GHz, 11.4511.7 GHz,
11.712.2 GHz (space-to-Earth or
downlink) and 14.014.5 GHz (Earth-tospace or uplink) frequency bands.
DATES: Effective April 8, 2013, except
for 25.132(b)(3), and 25.227(b), (c),
and (d), which contain new information
collection requirements that require
approval by the Office of Management
and Budget (OMB) under the PRA. The
will publish a document in the Federal
Register announcing such approval and
the relevant effective date.
Andrea Kelly, Satellite Division,
International Bureau, (202) 4180719, or
Howard Griboff, Policy Division,
International Bureau, (202) 4181460.
summary of the Commissions Report
and Order, adopted on December 20,
2012, and released on December 28,
2012 (FCC 12161). The full text of this
document is available for inspection
and copying during normal business
hours in the Commission Reference
Center, 445 12th Street SW.,
Washington, DC 20554. The document
is also available for download over the
Internet at http://hraunfoss.fcc.gov/
edocs_public/attachmatch/FCC-12161A1.doc. The complete text may also
be purchased from the Commissions
copy contractor, Best Copy and Printing,
in person at 445 12th Street SW., Room
CYB402, Washington, DC 20554, via
telephone at (202) 4885300, via
facsimile at (202) 4885563, or via email
at Commission@bcpiweb.com.
VerDate Mar<15>2010
16:06 Mar 07, 2013
Jkt 229001
Summary of the Report and Order

On January 18, 2005, the Commission
adopted the Notice of Proposed
Rulemaking in IB Docket No. 0520
(Order) (70 FR 2050801), recognizing
the emergence of the new market for
geostationary-orbit (GSO) Fixed-Satellite
Service (FSS) operations by proposing
more flexible use of the 11.712.2 GHz
and 14.014.5 GHz bands while
protecting existing terrestrial and
satellite services from harmful
interference. The Order proposed to
allocate the 11.712.2 GHz (space-toEarth) frequency band on a primary
basis for transmissions to earth stations
onboard airborne aircraft from GSO FSS
space stations, and the 14.014.5 GHz
(Earth-to-space) frequency band on a
secondary basis for transmissions to
GSO FSS space stations from earth
stations onboard airborne aircraft. The
Order also proposed technical and
licensing rules for these systems. In this
Report and Order, the Commission
allocates ESAA on a primary basis in
the 11.712.2 GHz (space-to-Earth)
band, allocating ESAA on an
unprotected basis in the 10.9511.2 GHz
and 11.4511.7 GHz (space-to-Earth)
bands, and allocating ESAA on a
secondary basis in the 14.014.5 GHz
band (Earth-to-space). In addition, this
Report and Order requires ESAA
licensees to coordinate their operations
with stations in the Space Research
Service and the Radioastronomy Service
to prevent interference and adopts
technical rules for the operation of
ESAA systems to ensure that ESAA
systems do not interfere with other FSS
users or terrestrial Fixed Service (FS)
users. Further, this Report and Order
adopts licensing requirements and
operational requirements for ESAA for
both U.S.-registered aircraft and for nonU.S.-registered aircraft operating in U.S.
airspace and requires all ESAA
licensees to operate consistently with
the Communications Assistance to Law
Enforcement Act (CALEA). At this time,
the Report and Order declines to extend
certain requirements concerning 1.5/1.6
GHz safety services to other frequency
bands, including those used by ESAA.
Final Regulatory Flexibility Analysis
The Regulatory Flexibility Act of
1980, as amended (RFA), requires that a
prepared for notice-and-comment rule
making proceedings, unless the agency
certifies that the rule will not, if
promulgated, have a significant
number of small entities. The RFA
directs agencies to provide a description
of and, where feasible, an estimate of
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
the number of small entities that may be

affected by the rules adopted herein.
The RFA generally defines the term
small entity as having the same
meaning as the terms small business,
small organization, and small
governmental jurisdiction. In addition,
the term small business has the same
meaning as the term small business
concern under the Small Business Act.
A small business concern is one that: (1)
Is independently owned and operated;
(2) is not dominant in its field of
operation; and (3) satisfies any
additional criteria established by the
Small Business Administration (SBA).
In light of the rules adopted in this
Report and Order, we find that the
category of Satellite
Telecommunications licensees is
affected by the new rules. Two
economic census categories address the
satellite industry. The first category has
a small business size standard of $15
million or less in average annual
receipts, under SBA rules. The second
has a size standard of $25 million or less
in annual receipts. The category of
Satellite Telecommunications
comprises establishments primarily
engaged in providing
telecommunications services to other
establishments in the
telecommunications and broadcasting
industries by forwarding and receiving
communications signals via a system of
satellites or reselling satellite
telecommunications. Census Bureau
data for 2007 show that 512 Satellite
Telecommunications firms that operated
for that entire year. Of this total, 464
firms had annual receipts of under $10
million, and 18 firms had receipts of
$10 million to $24,999,999.
Consequently, the Commission
estimates that the majority of Satellite
Telecommunications firms are small
entities that might be affected by our
action. The second category, i.e., All
Other Telecommunications comprises
establishments primarily engaged in
providing specialized
telecommunications services, such as
satellite tracking, communications
telemetry, and radar station operation.
This industry also includes
establishments primarily engaged in
providing satellite terminal stations and
associated facilities connected with one
or more terrestrial systems and capable
of transmitting telecommunications to,
and receiving telecommunications from,
satellite systems. For this category,
Census Bureau data for 2007 show that
there were a total of 2,383 firms that
operated for the entire year. Of this
total, 2,347 firms had annual receipts of
under $25 million and 12 firms had
E:\FR\FM\08MRR1.SGM
08MRR1
annual receipts of $25 million to
$49,999,999. Consequently, the
Commission estimates that the majority
of All Other Telecommunications firms
are small entities that might be affected
by our action. Commission records
reveal that there are approximately 20
space station licensees and operators in
the 10.9511.2 GHz, 11.4511.7 GHz,
11.712.2 GHz and 14.014.5 GHz
frequency bands. The Commission does
not request or collect annual revenue
information concerning such licensees
and operators, and thus is unable to
estimate the number of geostationary
space station licensees and operators
that would constitute a small business
under the SBA definition cited above, or
apply any rules providing special
consideration for geostationary space
station licensees and operators that are
small businesses. Currently there are
approximately 2,879 operational FixedSatellite Service transmit/receive earth
stations authorized for use in the band.
The Commission does not request or
collect annual revenue information, and
thus is unable to estimate the number of
earth stations that would constitute a
small business under the SBA
definition. In this Report and Order, we
require satellite operators to maintain
tracking data on the location of airborne
terminals for one year. This database
will assist investigations of radio
frequency interference claims. ESAA
operators must name a point of contact
to maintain information about location
and frequencies used by ESAA
terminals. Such information will assist
in investigating radio frequency
interference claims. The Commission
does not expect significant costs
associated with these proposals.
Therefore, we do not anticipate that the
burden of compliance will be greater for
smaller entities. The RFA requires that,
to the extent consistent with the
objectives of applicable statutes, the
analysis shall discuss significant
alternatives such as: (1) The
establishment of differing compliance or
reporting requirements or timetables
that take into account the resources
available to small entities; (2) the
clarification, consolidation, or
simplification of compliance and
reporting requirements under the rule
for small entities; (3) the use of
performance, rather than design,
standards; and (4) an exemption from
coverage of the rule, or any part thereof,
for small entities. In adopting blanket
licensing with 15-year terms for
conforming ESAA terminals, the Report
and Order simplifies the application
process for ESAA and establishes
licensing terms consistent with other
VerDate Mar<15>2010
16:06 Mar 07, 2013
Jkt 229001
satellite-based services, such as ESV and

VMES. Thus, adoption of the rules
should reduce the costs associated with
obtaining and maintaining authority to
operate an ESAA network.
Final Paperwork Reduction Act of 1995
Analysis
This Report and Order contains new
or modified information collection
requirements subject to the Paperwork
Reduction Act of 1995 (PRA), Public
Law 10413 (44. U.S.C. 35013520). The
requirements will be submitted to the
Office of Management and Budget
(OMB) for review under section 3507(d)
of the PRA. OMB, the general public,
and other Federal agencies will be
invited to comment on the new or
modified information collection
requirements contained in this
proceeding in a separate notice that will
be published in the Federal Register
inviting comment on the new or revised
requirements. The requirements will not
go into effect until OMB has approved
them and the Commission has
published a notice announcing the
effective date of the information
collection requirements. In addition,
pursuant to the Small Business
Paperwork Relief Act of 2002, Public
Law 107198, see 44 U.S.C. 3506(c)(4),
we previously sought specific comment
on how the Commission might further
reduce the information collection
burden for small business concerns with
fewer than 25 employees. In Report and
Order, we have assessed the effects of
the new rules that impose various
requirements on ESAA providers, and
find that the collection of information
requirements will not have a significant
impact on small business concerns with
fewer than 25 employees.
Congressional Review Act
The Commission will send a copy of
this Report and Order to Congress and
the Government Accountability Office
Act, see 5 U.S.C. 801(a)(1)(A).
Ordering Clauses
It is ordered that, pursuant to the
authority contained in sections 4(i), 4(j),
7(a), 302(a), 303(c), 303(e), 303(f),
303(g), 303(j), 303(r), and 303(y) of the
amended, 47 U.S.C. 154(i), 154(j),
157(a), 302(a), 303(c), 303(e), 303(f),
303(g), 303(j), 303(r), 303(y), this Report
and Order in IB Docket No. 0520 is
adopted.
It is further ordered that parts 2 and
25 of the Commissions rules are
amended and shall be effective 30 days
after the date of publication in the
Federal Register, except for
PO 00000
Frm 00015
Fmt 4700
Sfmt 4700
14921
25.132(b)(3), and 25.227(b), (c), and

(d), which contain new information
collection requirements that require
approval by the Office of Management
and Budget (OMB) under the PRA. The
will publish a document in the Federal
Register announcing such approval and
the relevant effective date.
It is further ordered that the final
regulatory flexibility analysis, as
required by section 604 of the
Regulatory Flexibility Act, is adopted.
International Bureau is delegated
authority to issue Public Notices
consistent with this Report and Order.
It is further ordered that IB Docket No.
0520 is terminated.
Commissions Consumer and
Governmental Affairs Bureau, Reference
Information Center shall send a copy of
this Report and Order and the related
Notice of Proposed Rulemaking,
including the final regulatory flexibility
analysis and initial regulatory flexibility
analysis, to the Chief Counsel for
Advocacy of the Small Business
Administration, in accordance with
section 603(a) of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.
List of Subjects in 47 CFR Parts 2 and
25
Frequency allocations, Satellites.
Marlene H. Dortch,
Secretary.
Final Rule
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR parts 2 and
25 as follows:
PART 2FREQUENCY ALLOCATIONS
AND RADIO TREATY MATTERS;
GENERAL RULES AND REGULATIONS
1. The authority citation for Part 2
Authority: 47 U.S.C. 154, 302a, 303, and

336, unless otherwise noted.
2. Amend 2.106, the Table of

Frequency Allocations, to read as
follows:
a. Pages 4749 are revised.
b. In the list of United States (US)
Footnotes, footnote US133 is added in
alphanumerical order.
c. In the list of non-Federal
Government (NG) Footnotes, footnotes
NG52, NG54, and NG55 are added in
alphanumerical order and footnotes
NG104, NG182, NG184, and NG186 are
removed.
The revisions and additions read as
follows:
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14922
2.106
Table of Frequency Allocations.
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Fmt 4700
Sfmt 4700
E:\FR\FM\08MRR1.SGM
08MRR1
VerDate Mar<15>2010
Table of Frequency Allocations

Region 3 Table
10-10.45
FIXED
MOBILE
RADIOLOCATION
Amateur
Jkt 229001
PO 00000
Frm 00017
Fmt 4700
Sfmt 4725
E:\FR\FM\08MRR1.SGM
08MRR1
5.479 US128
10.5-10.55
RADIOLOCATION US59
10.55-10.6
10.6-10.68
EARTH EXPLORATIONSATELLITE (passive)
SPACE RESEARCH (passive)
FCC Rule Part(s)
Private Land Mobile (90)

Amateur Radio (97)
5.479 US128 NG50

10.45-10.5
Amateur
Amateur-satellite
Radiolocation US108
US128 NG50
10.55-10.6
FIXED
Fixed Microwave (101)
10.6-10.68
EARTH EXPLORATIONSATELLITE (passive)
FIXED US265
US130 US131 US265

US130 US131
10.68-10.7
EARTH EXPLORATION-SATELLITE (passive)
RADIO ASTRONOMY US74
US131 US246
10.7-11.7
10.7-11.7
FIXED
FIXED-SATELLITE (space-toEarth) 5.441 US131 US211
NG52
US131 US211
11.7-12.2
11.7-12.2
FIXED-SATELLITE (space-toEarth) 5.485 5.488
NG55 NG143 NG183 NG187
Satellite Communications (25)

14923
5.479
5.479 5.480
5.479
10.45-10.5
RADIOLOCATION
Amateur
Amateur-satellite
5.481
10.5-10.55
10.5-10.55
FIXED
FIXED
MOBILE
MOBILE
Radiolocation
RADIOLOCATION
10.55-10.6
FIXED
MOBILE except aeronautical mobile
Radiolocation
10.6-10.68
FIXED
RADIO ASTRONOMY
Radiolocation
5.149 5.482 5.482A
10.68-10.7
RADIO ASTRONOMY
5.340 5.483
10.7-11.7
10.7-11.7
FIXED
FIXED
FIXED-SATELLITE (space-to-Earth) FIXED-SATELLITE (space-to-Earth) 5.441 5.484A
5.441 5.484A (Earth-to-space)
5.484
11.7-12.5
11.7-12.1
11.7-12.2
FIXED 5.486
FIXED
FIXED
FIXED-SATELLITE (space-Io-Earth) MOBILE except aeronautical mobile
MOBILE except aeronautical
5.484A 5.488
mobile
BROADCASTING
Mobile except aeronautical mobile
BROADCASTING
BROADCASTING-SATELLITE 5.492
BROADCASTING-SATELLITE
5.485
5.492
12.1-12.2
FIXED-SATELLITE (space-to-Earth)
5.484A 5.488
5.485 5.489
5.487 5.487A
Page 47
United States Table

Federal Table
Non-Federal Table
10-10.5
10-10.45
RADIOLOCATION US108
Amateur
G32
Radiolocation US108
16:06 Mar 07, 2013
Region 1 Table
10-10.45
FIXED
MOBILE
RADIOLOCATION
Amateur
10-14 GHz (SHF)

International Table
Region 2 Table
10-10.45
RADIOLOCATION
Amateur
ER08MR13.002</GPH>
14924
VerDate Mar<15>2010
Jkt 229001
PO 00000
12.2-12.5
FIXED
BROADCASTING
5.487A 5.488 5.490

12.7-12.75
FIXED
FIXED-SATELLITE (Earth-to-space)
5.484A 5.487
12.5-12.75
FIXED
5.484A
Frm 00018
5.494 5.495 5.496

12.75-13.25
FIXED
FIXED-SATELLITE (Earth-to-space) 5.441
MOBILE
Space research (deep space) (space-to-Earth)
Fmt 4700
Sfmt 4725
13.25-13.4
EARTH EXPLORATION-SATELLITE (active)
AERONAUTICAL RADIONAVIGATION 5.497
SPACE RESEARCH (active)
E:\FR\FM\08MRR1.SGM
5.498A 5.499
13.4-13.75
EARTH EXPLORATION-SATELLITE (active)
RADIOLOCATION
SPACE RESEARCH 5.501A
Standard frequency and time signal-satellite (Earth-to-space)
5.499 5.500 5.501 5.501 B
08MRR1
13.75-14
FIXED-SATELLITE (Earth-to-space) 5.484A
RADIOLOCATION
Earth exploration-satellite
Standard frequency and time signal-satellite (Earth-to-space)
Space research
5.499 5.500 5.501 5.502 5.503
12.2-12.75
12.75-13.25
US251
13.25-13.4
EARTH EXPLORATIONSATELLITE (active)
AERONAUTICAL
RADIONAVIGATION 5.497
SPACE RESEARCH (active)
5.498A
13.4-13.75
EARTH EXPLORATIONSATELLITE (active)
RADIOLOCATION G59
SPACE RESEARCH 5.501A
Standard frequency and time

signal-satellite (Earth-to-space)
5.501B
13.75-14
RADIOLOCATION G59
Space research US337
US356 US357
12.2-12.7
FIXED
BROADCASTING-SATELLITE
5.487A 5.488 5.490

12.7-12.75
FIXED NGl18
FIXED-SATELLITE
(Earth-to-space )
MOBILE
12.75-13.25
FIXED NGl18
FIXED-SATELLITE
(Earth-to-space) 5.441 NG52
MOBILE
US251 NG53
13.25-13.4
AERONAUTICAL
Earth exploration-satellite (active)
Space research (active)
13.4-13.75
Earth exploration-satellite (active)
Radiolocation
Space research
13.75-14
FIXED-SATELLITE
(Earth-to-space) US337
Space research
Radiolocation
US356 US357

TV Broadcast Auxiliary (74F)

Cable TV Relay (78)

TV Broadcast Auxiliary (74F)
Cable TV Relay (78)
Aviation (87)

Page 48
ER08MR13.003</GPH>
16:06 Mar 07, 2013
5.487 5.487A
12.5-12.75
FIXED-SATELLITE (space-toEarth) 5.484A (Earth-to-space)
12.2-12.7
FIXED
BROADCASTING
14-17.7 GHz (SHF)

International Table
Reg ion 2 Table
Reg ion 1 Table

14-14.25
FIXED-SATELLITE (Earth-to-space) 5.457A 5.457B 5.484A 5.506 5.506B
Mobile-satellite (Earth-to-space) 5.504B 5.504C 5.506A
Space research
Region 3 Table
Jkt 229001
PO 00000
5.504A 5.505
14.25-14.3
Mobile-satellite (Earth-to-space) 5.504B 5.506A 5.508A
Space research
Frm 00019
Fmt 4700
Sfmt 4700
E:\FR\FM\08MRR1.SGM
08MRR1
5.504A 5.505 5.508

14.3-14.4
14.3-14.4
FIXED
5.457A 5.484A 5.506 5.506B
5.457A 5.457B 5.484A 5.506 5.506B Mobile-satellite (Earth-to-space)
5.506A
Radianavigatian-satellite
Mobile-satellite (Earth-to-space) 5.504B
5.506A 5.509A
5.504A
5.504A
14.4-14.47
FIXED
Space research (space-to-Earth)
5.504A
14.47-14.5
FIXED
Radio astronomy
5.149 5.504A
14.5-14.8
FIXED
FIXED-SATELLITE (Earth-to-space) 5.510
MOBILE
Space research
14.8-15.35
FIXED
MOBILE
Space research
Page 49
United States Table

Federal Table
Non-Federal Table
14-14.2
14-14.2
Space research US133
NG54 NG183 NG187
Mobile-satellite (Earth-to-space)
Space research
14.2-14.4
FCC Rule Part(s)
Satellite Communications
(25)
US133
14.2-14.47
NG54 NG183 NG187
14.3-14.4
FIXED
5.457A 5.484A 5.506 5.506B
5.504B 5.506A 5.509A
5.504A
14.4-14.47
Fixed
Mobile
14.47-14.5
Fixed
Mobile
14.47-14.5
NG54 NG183 NG187
US133 US203 US342

14.5-14.7145
FIXED
Mobile
Space research
14.7145-14.8
MOBILE
Fixed
Space research
14.8-15.1365
MOBILE
SPACE RESEARCH
Fixed
US310
US133 US203 US342

14.5-14.8
14.8-15.1365
J.J3jO_______________
----------------------
ER08MR13.004</GPH>
14925
-------------------------
16:06 Mar 07, 2013
BILLING CODE 671201C
VerDate Mar<15>2010
Table of Frequency Allocations
14926
*
*
United States (US) Footnotes

*
*
*
*
*
US133 In the bands 1414.2 GHz
and 14.4714.5 GHz, the following
provisions shall apply to the operations
of Earth Stations Aboard Aircraft
(ESAA):
(a) In the band 1414.2 GHz, ESAA
licensees proposing to operate within
radio line-of-sight of the coordinates
specified in 47 CFR 25.227(c) are subject
to prior coordination with NTIA in
order to minimize harmful interference
to the ground terminals of NASAs
Tracking and Data Relay Satellite
System (TDRSS).
(b) In the band 14.4714.5 GHz,
operations within radio line-of-sight of
the radio astronomy stations specified
in 47 CFR 25.226(d)(2) are subject to
coordination with the National Science
Foundation in accordance with 47 CFR
25.227(d).
*
*
*
*
*
Non-Federal Government (NG)
Footnotes
*
*
*
*
NG52 Except as otherwise provided
for herein, use of the bands 10.711.7
GHz (space-to-Earth) and 12.7513.25
GHz (Earth-to-space) by geostationary
satellites in the fixed-satellite service
(FSS) shall be limited to international
systems, i.e., other than domestic
systems. In the sub-bands 10.9511.2
GHz and 11.4511.7 GHz, Earth Stations
on Vessels (ESV), Vehicle-Mounted
Earth Stations (VMES), and Earth
Stations Aboard Aircraft (ESAA) as
regulated under 47 CFR part 25 may be
authorized for the reception of FSS
emissions from geostationary satellites,
subject to the condition that these earth
stations shall not claim protection from
transmissions of non-Federal stations in
the fixed service.
*
*
*
*
*
NG54 In the band 1414.5 GHz,
Earth Stations Aboard Aircraft (ESAA)
as regulated under 47 CFR part 25 may
be authorized to communicate with
geostationary satellites in the fixedsatellite service (Earth-to-space), subject
to the condition that ESAA shall not
claim protection from, nor cause
interference to, earth stations at given
positions (where the given position may
be a specified fixed point or any fixed
point within specified areas).
NG55 In the band 11.712.2 GHz,
Earth Stations Aboard Aircraft (ESAA)
as regulated under 47 CFR part 25 are
an application of the fixed-satellite
service and may be authorized to
communicate with geostationary
VerDate Mar<15>2010
16:06 Mar 07, 2013
Jkt 229001
satellites in the fixed-satellite service

(space-to-Earth) on a primary basis.
*
*
*
*
*
PART 25SATELLITE
COMMUNICATIONS
3. The authority citation for Part 25
Authority: 47 U.S.C. 701744. Interprets

or applies Sections 4, 301, 302, 303, 307, 309,
amended, 47 U.S.C. 154, 301, 302, 303, 307,
309, and 332 unless otherwise noted.

revising paragraph (a)(2)(iii) to read as
follows:
25.115 Application for earth station

authorizations.
*
*
*
*
(a) * * *
(2) * * *
(iii) The earth station is not an ESV,
VMES or ESAA.
*
*
*
*
*
revising paragraph (a) introductory text
to read as follows:
25.130 Filing requirements for
transmitting earth stations.
(a) Applications for a new or modified

transmitting earth station facility shall
be submitted on FCC Form 312, and
associated Schedule B, accompanied by
any required exhibits, except for those
earth station applications filed on FCC
Form 312EZ pursuant to 25.115(a). All
such earth station license applications
must be filed electronically through the
International Bureau Filing System
(IBFS) in accordance with the
applicable provisions of part 1, subpart
Y of this chapter. Additional filing
requirements for Earth Stations on
Vessels are described in 25.221 and
25.222. Additional filing requirements
for Vehicle-Mounted Earth Stations are
described in 25.226. Additional filing
requirements for Earth Stations Aboard
Aircraft are described in 25.227. In
addition, applicants that are not
required to submit applications on Form
312EZ, other than ESV, VMES or ESAA
applicants, must submit the following
information to be used as an
informative in the public notice
issued under 25.151 as an attachment
to their application:
*
*
*
*
*
revising paragraph (b)(3) to read as
follows:
25.132 Verification of earth station
antenna performance standards.
*
*
(b) * * *
PO 00000
Frm 00020
Fmt 4700
Sfmt 4700
(3) Applicants seeking authority to

use an antenna that does not meet the
standards set forth in 25.209(a) and
(b), pursuant to the procedure set forth
in 25.220, 25.221, 25.222, 25.223,
25.226 or 25.227, are required to
submit a copy of the manufacturers
range test plots of the antenna gain
patterns specified in paragraph (b)(1) of
this section.
*
*
*
*
*
adding a definition of Earth Stations
Aboard Aircraft (ESAA) in alphabetical
order to read as follows:
25.201
Definitions.
*
*
*
*
Earth Stations Aboard Aircraft
(ESAA). ESAA is an earth station or
earth stations, operating from an
aircraft, that receives from and transmits
to geostationary satellite orbit FixedSatellite Service space stations and
operates within the United States
pursuant to the requirements set out
25.227.
*
*
*
*
*
adding paragraph (a)(11) to read as
follows:
25.202 Frequencies, frequency tolerance
and emission limitations.
*
*
*
*
(a)(11)(i) The following frequencies
are available for use by Earth Stations
Aboard Aircraft (ESAA):
10.9511.2 GHz (space-to-Earth)
14.014.5 GHz (Earth-to-space)
(ii) ESAAs shall be authorized as set
forth in 25.227.
*
*
*
*
*
revising the introductory text in
paragraph (c), and paragraphs (d) and
(k) to read as follows:
25.203
Choice of sites and frequencies.
*
*
*
*
(c) Prior to the filing of its application,
an applicant for operation of an earth
station, other than an ESV, VMES or
ESAA, shall coordinate the proposed
frequency usage with existing terrestrial
users and with applicants for terrestrial
station authorizations with previously
filed applications in accordance with
the following procedure:
*
*
*
*
*
(d) An applicant for operation of an
earth station, other than an ESV, VMES
or an ESAA, shall also ascertain
whether the great circle coordination
distance contours and rain scatter
coordination distance contours,
E:\FR\FM\08MRR1.SGM
08MRR1
computed for those values of parameters
indicated in 25.251 (Appendix 7 of the
ITU RR) for international coordination,
cross the boundaries of another
Administration. In this case, the
applicant shall furnish the Commission
copies of these contours on maps drawn
to appropriate scale for use by the
Commission in effecting coordination of
the proposed earth station with the
Administration(s) affected.
*
*
*
*
*
(k) An applicant for operation of an
earth station, other than an ESV, VMES
or an ESAA, that will operate with a
geostationary satellite or nongeostationary satellite in a shared
frequency band in which the nongeostationary system is (or is proposed
to be) licensed for feeder links, shall
demonstrate in its applications that its
proposed earth station will not cause
unacceptable interference to any other
satellite network that is authorized to
operate in the same frequency band, or
certify that the operations of its earth
station shall conform to established
coordination agreements between the
operator(s) of the space station(s) with
which the earth station is to
communicate and the operator(s) of any
other space station licensed to use the
band.
*
*
*
*
*
adding paragraph (k) to read as follows:
25.204
Power limits.
*
*
*
*
(k) Within radio line-of-sight of the
Tracking and Data Relay System
Satellite (TDRSS) sites identified in
25.227(c), ESAA transmissions in the
14.014.2 GHz (Earth-to-space) band
shall not exceed an EIRP spectral
density towards or below the horizon of
12.5 dBW/MHz, and shall not exceed an
EIRP towards or below the horizon of
16.3 dBW.
adding paragraph (d) to read as follows:
25.205 Minimum angle of antenna
elevation.
*
*
*
*
(d) While on the ground, ESAAs shall
not be authorized for transmission at
angles less than 5 measured from the
15 - 10 log10 (N) - 25 log10q ........................

-6 - 10 log10 (N) ...........................................
18 - 10 log10 (N) - 25 log10q ........................
-24 - 10 log10 (N) .........................................
-14 - 10 log10 (N) .........................................
where theta (q) is the angle in degrees

from the line connecting the focal point
VerDate Mar<15>2010
16:06 Mar 07, 2013
Jkt 229001
plane of the horizon to the direction of

maximum radiation. While in flight
there is no minimum angle of antenna
elevation.
12. Section 25.209 paragraph (f) is
25.209
Antenna performance standards.
*
*
*
*
(f) An earth station with an antenna
not conforming to the standards of
paragraphs (a) and (b) of this section
will be authorized only if the applicant
meets its burden of demonstrating that
its antenna will not cause unacceptable
interference. For ESVs in the C-band,
this demonstration must comply with
the procedures set forth in 25.221. For
ESVs in the Ku-band, this
demonstration must comply with the
procedures set forth in 25.222. For
VMES, this demonstration shall comply
with the procedures set forth in
25.226. For ESAAs, this demonstration
shall comply with the procedures set
forth in 25.227. For feeder-link earth
stations in the 17/24 GHz BSS, this
procedures set forth in 25.223. For
other FSS earth stations, this
procedures set forth in 25.218 or
25.220. In any case, the Commission
will impose appropriate terms and
conditions in its authorization of such
facilities and operations.
*
*
*
*
*
revising the section heading and
paragraph (a)(1) to read as follows:
25.218 Off-axis EIRP density envelope
for FSS earth station operators.
(a) * * *
(1) ESV, VMES and ESAA
Applications
*
*
*
*
*
revising paragraph (a)(1) to read as
follows:
25.220 Non-conforming transmit/receive
earth station operations.
(a)(1) This section applies to earth

station applications other than ESV,
VMES, ESAA and 17/24 GHz BSS feeder
link applications in which the proposed
earth station operations do not fall
dBW/4
dBW/4
dBW/4
dBW/4
dBW/4
kHz
kHz
kHz
kHz
kHz
..................................................
..................................................
..................................................
..................................................
..................................................
For
For
For
For
For
of the antenna to the orbital location of

the target satellite in the plane of the
PO 00000
Frm 00021
Fmt 4700
Sfmt 4700
14927
within the applicable off-axis EIRP

density envelope specified in 25.218.
*
*
*
*
*
15. Add 25.227 to Subpart C of Part
25 to read as follows:
25.227 Blanket licensing provisions for
Earth Stations Aboard Aircraft (ESAAs)
receiving in the 10.9511.2 GHz (space-toEarth), 11.4511.7 GHz (space-to-Earth), and
11.712.2 GHz (space-to-Earth) frequency
bands and transmitting in the 14.014.5 GHz
(Earth-to-space) frequency band, operating
with Geostationary Satellites in the FixedSatellite Service.
(a) The following ongoing

requirements govern all ESAA licensees
and operations in the 10.9511.2 GHz
(space-to-Earth), 11.4511.7 GHz (spaceto-Earth), 11.712.2 GHz (space-toEarth) and 14.014.5 GHz (Earth-tospace) frequency bands receiving from
and transmitting to geostationary orbit
satellites in the Fixed-Satellite Service.
ESAA licensees shall comply with the
requirements in either paragraph (a)(1),
(a)(2) or (a)(3) of this section and all of
the requirements set forth in paragraphs
(a)(4) through (a)(16) and paragraphs (c),
(d), and (e) of this section. Paragraph (b)
of this section identifies items that shall
be included in the application for ESAA
operations to demonstrate that these
ongoing requirements will be met.
(1) The following requirements shall
apply to an ESAA that uses transmitters
with off-axis EIRP spectral-densities
lower than or equal to the levels in
paragraph (a)(1)(i) of this section. ESAA
licensees operating under this section
shall provide a detailed demonstration
as described in paragraph (b)(1) of this
section. The ESAA transmitter also shall
comply with the antenna pointing and
cessation of emission requirements in
paragraphs (a)(1)(ii) and (iii) of this
section.
(i) An ESAA licensee shall not exceed
the off-axis EIRP spectral-density limits
and conditions defined in paragraphs
(a)(1)(i)(A) through (D) of this
subsection.
(A) The off-axis EIRP spectral-density
for co-polarized signals emitted from the
ESAA, in the plane of the geostationary
satellite orbit (GSO) as it appears at the
particular earth station location, shall
not exceed the following values:
.....
.....
.....
.....
.....
1.5 q 7
7 < q 9.2
9.2 < q 48
48 < q 85
85 < q 180
GSO. The plane of the GSO is

determined by the focal point of the
E:\FR\FM\08MRR1.SGM
08MRR1
14928
density, N is the maximum expected
number of co-frequency simultaneously
transmitting ESAA earth stations in the
same satellite receiving beam. For the
purpose of this subsection, the peak
EIRP density of an individual sidelobe
shall not exceed the envelope defined
above for q between 1.5 and 7.0. For
q greater than 7.0, the envelope shall be
antenna and the line tangent to the arc

of the GSO at the orbital location of the
target satellite. For ESAA networks
using frequency division multiple
access (FDMA) or time division
multiple access (TDMA) techniques, N
is equal to one. For ESAA networks
using multiple co-frequency
transmitters that have the same EIRP
18 - 10 log10 (N) - 25log log10q ...................
-24 - 10 log10 (N) .........................................
-14 - 10 log10 (N) .........................................
dBW/4 kHz ..................................................

dBW/4 kHz ..................................................
dBW/4kHz ....................................................
where q and N are defined in paragraph

(a)(1)(i)(A). This off-axis EIRP spectraldensity applies in any plane that
includes the line connecting the focal
point of the antenna to the orbital
location of the target satellite with the
exception of the plane of the GSO as
defined in paragraph (a)(1)(i)(A) of this
5 - 10 log10 (N) - 25log10q ...........................

-16 - 10 log10 (N) .........................................
where q and N are defined in paragraph

(a)(1)(i)(A). This off-axis EIRP spectraldensity applies in the plane of the
geostationary satellite orbit as it appears
at the particular earth station location.
(ii) Each ESAA transmitter shall meet
one of the following antenna pointing
requirements:
(A) Each ESAA transmitter shall
maintain a pointing error of less than or
equal to 0.2 between the orbital
location of the target satellite and the
axis of the main lobe of the ESAA
antenna; or
(B) Each ESAA transmitter shall
declare a maximum antenna pointing
error that may be greater than 0.2
provided that the ESAA does not exceed
in paragraph (a)(1)(i) of this section,
taking into account the antenna pointing
error.
(iii) Each ESAA transmitter shall meet
one of the following cessation of
emission requirements:
(A) For ESAAs operating under
paragraph (a)(1)(ii)(A) of this section, all
emissions from the ESAA shall
automatically cease within 100
milliseconds if the angle between the
orbital location of the target satellite and
the axis of the main lobe of the ESAA
antenna exceeds 0.5, and transmission
shall not resume until such angle is less
than or equal to 0.2, or
(B) For ESAA transmitters operating
under paragraph (a)(1)(ii)(B) of this
section, all emissions from the ESAA
shall automatically cease within 100
milliseconds if the angle between the
VerDate Mar<15>2010
16:06 Mar 07, 2013
Jkt 229001
For .....
For .....
For .....
section. For the purpose of this

subsection, the envelope shall be
exceeded by no more than 10% of the
sidelobes provided no individual
sidelobe exceeds the EIRP density
envelope given above by more than 6
dB. The region of the main reflector
spillover energy is to be interpreted as
dBW/4kHz ....................................................
dBW/4kHz ....................................................
Frm 00022
Fmt 4700
Sfmt 4700
3.0 q 48
48 < q 85
85 < q 180
a single lobe and shall not exceed the

envelope by more than 6 dB.
(C) The off-axis EIRP spectral-density
for cross-polarized signals emitted from
the ESAA shall not exceed the following
values:
For .....
For .....
orbital location of the target satellite and

the axis of the main lobe of the ESAA
antenna exceeds the declared maximum
antenna pointing error and shall not
resume transmissions until such angle is
less than or equal to the declared
maximum antenna pointing error.
apply to an ESAA, or ESAA system, that
uses off-axis EIRP spectral-densities in
excess of the levels in paragraph (a)(1)(i)
of this section. An ESAA, or ESAA
network, operating under this
subsection shall file certifications and
described in paragraph (b)(2) of this
section.
(i) The ESAA shall transmit only to
the target satellite system(s) referred to
in the certifications required by
paragraph (b)(2) of this section.
(ii) If a good faith agreement cannot be
reached between the target satellite
operator and the operator of a future
satellite that is located within 6 degrees
longitude of the target satellite, the
ESAA operator shall accept the powerdensity levels that would accommodate
that adjacent satellite.
(iii) The ESAA shall operate in
accordance with the off-axis EIRP
spectral-densities that the ESAA
supplied to the target satellite operator
in order to obtain the certifications
listed in paragraph (b)(2) of this section.
The ESAA shall automatically cease
emissions within 100 milliseconds if the
ESAA transmitter exceeds the off-axis
EIRP spectral-densities supplied to the
target satellite operator and
PO 00000
exceeded by no more than 10% of the

sidelobes, provided no individual
sidelobe exceeds the envelope given
above by more than 3 dB.
(B) In all directions other than along
the GSO, the off-axis EIRP spectraldensity for co-polarized signals emitted
from the ESAA shall not exceed the
following values:
1.8 < q 7
7 < q 9.2
transmission shall not resume until

ESAA conforms to the off-axis EIRP
spectral densities supplied to the target
satellite operator.
(iv) In the event that a coordination
agreement discussed in paragraph
(b)(2)(ii) of this section is reached, but
that coordination agreement does not
address protection from interference for
the earth station, that earth station will
be protected from interference to the
same extent that an earth station that
meets the requirements of 25.209 of
this title would be protected from
interference.
apply to an ESAA system that uses
variable power-density control of
individual simultaneously transmitting
co-frequency ESAA earth stations in the
same satellite receiving beam. An ESAA
system operating under this subsection
shall provide a detailed demonstration
as described in paragraph (b)(3) of this
section.
(i) The effective aggregate EIRP
density from all terminals shall be at
least 1 dB below the off-axis EIRP
density limits defined in paragraph
(a)(1)(i)(A) through (C), with the value of
N=1. In this context the term effective
means that the resultant co-polarized
and cross-polarized EIRP density
experienced by any GSO or non-GSO
satellite shall not exceed that produced
by a single transmitter operating 1 dB
below the limits defined in paragraph
(a)(1)(i)(A) through (C). The individual
ESAA transmitter shall automatically
cease emissions within 100
E:\FR\FM\08MRR1.SGM
08MRR1
milliseconds if the ESAA transmitter
exceeds the off-axis EIRP density limits
minus 1 dB specified above. If one or
more ESAA transmitters causes the
aggregate off-axis EIRP-densities to
exceed the off-axis EIRP density limits
minus 1dB specified above, then the
transmitter or transmitters shall cease or
reduce emissions within 100
milliseconds of receiving a command
from the systems network control and
monitoring center. An ESAA system
operating under this subsection shall
section.
(ii) The following requirements shall
apply to an ESAA that uses off-axis
EIRP spectral-densities in excess of the
levels in paragraph (a)(3)(i) of this
section. An ESAA system operating
under this subsection shall file
certifications and provide a detailed
demonstration as described in
paragraphs (b)(3)(ii) and (b)(3)(iii) of this
section.
(A) If a good faith agreement cannot
be reached between the target satellite
operator and the operator of a future
satellite that is located within 6 degrees
longitude of the target satellite, the
ESAA shall operate at an EIRP density
defined in (a)(3)(i) of this section.
(B) The ESAA shall operate in
accordance with the off-axis EIRP
spectral-densities that the ESAA
supplied to the target satellite operator
in order to obtain the certifications
listed in paragraph (b)(3)(ii) of this
section. The individual ESAA terminals
shall automatically cease emissions
within 100 milliseconds if the ESAA
transmitter exceeds the off-axis EIRP
spectral-densities supplied to the target
satellite operator. The overall system
shall be capable of shutting off an
individual transmitter or the entire
system if the aggregate off-axis EIRP
spectral-densities exceed those supplied
to the target satellite operator.
-132 + 0.5 q ...............................................

-112 ..............................................................
dB(W/(m2 MHz)) ........................................

dB(W/(m2 MHz)) ........................................
Where: q is the angle of arrival of the

radio-frequency wave (degrees above the
horizontal) and the aforementioned
limits relate to the pfd and angles of
arrival would be obtained under freespace propagation conditions.
(14) All ESAA terminals operated in
U.S. airspace must be licensed by the
Commission.
(15) For ESAA systems operating over
international waters, ESAA operators
will certify that their target space station
VerDate Mar<15>2010
16:06 Mar 07, 2013
Jkt 229001
(C) The ESAA shall transmit only to

the target satellite system(s) referred to
in the certifications required by
paragraph (b)(3) of this section.
(4) An applicant filing to operate an
ESAA terminal or system and planning
to use a contention protocol shall certify
that its contention protocol use will be
reasonable.
(5) There shall be a point of contact
in the United States, with phone
number and address, available 24 hours
a day, seven days a week, with authority
and ability to cease all emissions from
the ESAA.
(6) For each ESAA transmitter, a
record of the vehicle location (i.e.,
latitude/longitude/altitude), transmit
frequency, channel bandwidth and
satellite used shall be time annotated
and maintained for a period of not less
than one year. Records shall be recorded
at time intervals no greater than one (1)
minute while the ESAA is transmitting.
The ESAA operator shall make this data
available, in the form of a comma
delimited electronic spreadsheet, within
24 hours of a request from the
Commission, NTIA, or a frequency
coordinator for purposes of resolving
harmful interference events. A
description of the units (i.e., degrees,
minutes, MHz * * *.) in which the
records values are recorded will be
supplied along with the records.
(7) In the 10.9511.2 GHz (space-toEarth) and 11.4511.7 GHz (space-toEarth) frequency bands ESAAs shall not
claim protection from interference from
any authorized terrestrial stations to
which frequencies are either already
assigned, or may be assigned in the
future.
(8) An ESAA terminal receiving in the
11.712.2 GHz (space-to-Earth) bands
shall receive protection from
interference caused by space stations
other than the target space station only
to the degree to which harmful
interference would not be expected to
be caused to an earth station employing
PO 00000
Frm 00023
Fmt 4700
Sfmt 4700
an antenna conforming to the referenced

patterns defined in paragraphs (a) and
(b) of section 25.209 and stationary at
the location at which any interference
occurred.
(9) Each ESAA terminal shall
automatically cease transmitting within
100 milliseconds upon loss of reception
of the satellite downlink signal or when
it detects that unintended satellite
tracking has happened or is about to
happen.
(10) Each ESAA terminal should be
subject to the monitoring and control by
an NCMC or equivalent facility. Each
terminal must be able to receive at least
enable transmission and disable
transmission commands from the
NCMC and must automatically cease
transmissions immediately on receiving
any parameter change command,
which may cause harmful interference
during the change, until it receives an
enable transmission command from
its NCMC. In addition, the NCMC must
be able to monitor the operation of an
ESAA terminal to determine if it is
malfunctioning.
(11) Each ESAA terminal shall be selfmonitoring and, should a fault which
can cause harmful interference to FSS
networks be detected, the terminal must
automatically cease transmissions.
(12) Unless otherwise stated all ESAA
system that comply with the off-axis
EIRP spectral-density limits in
paragraph (a)(1)(i) of this section may
request ALSAT authority.
(13) ESAA providers operating in the
international airspace within line-ofsight of the territory of a foreign
administration where fixed service
networks have primary allocation in this
band, the maximum power flux density
(pfd) produced at the surface of the
Earth by emissions from a single aircraft
carrying an ESAA terminal should not
exceed the following values unless the
foreign Administration has imposed
other conditions for protecting its fixed
service stations:
For .....
For .....
operators have confirmed that proposed

ESAA operations are within coordinated
parameters for adjacent satellites up to
6 degrees away on the geostationary arc.
(16) Prior to operations within the
foreign nations airspace, the ESAA
operator will ascertain whether the
relevant administration has operations
that could be affected by ESAA
terminals, and will determine whether
that administration has adopted specific
requirements concerning ESAA
14929
q 40
40 < q 90
operations. When the aircraft enters

foreign airspace, the ESAA terminal
would be required to operate under the
Commissions rules, or those of the
foreign administration, whichever is
more constraining. To the extent that all
relevant administrations have identified
geographic areas from which ESAA
operations would not affect their radio
operations, ESAA operators would be
free to operate within those identified
areas without further action. To the
E:\FR\FM\08MRR1.SGM
08MRR1
14930
extent that the foreign administration

has not adopted requirements regarding
ESAA operations, ESAA operators
would be required to coordinate their
operations with any potentially affected
operations.
(b) Applications for ESAA operation
in the 14.014.5 GHz (Earth-to-space)
band to GSO satellites in the FixedSatellite Service shall include, in
addition to the particulars of operation
identified on Form 312, and associated
Schedule B, the applicable technical
demonstrations in paragraphs (b)(1),
(b)(2) or (b)(3) and the documentation
identified in paragraphs (b)(4) through
(b)(8) of this section.
(1) An ESAA applicant proposing to
implement a transmitter under
paragraph (a)(1) of this section shall
demonstrate that the transmitter meets
contained in paragraph (a)(1)(i) of this
section. To provide this demonstration,
the application shall include the tables
section or the certification described in
paragraph (b)(1)(ii) of this section. The
ESAA applicant also shall provide the
value N described in paragraph
(a)(1)(i)(A) of this section. An ESAA
applicant proposing to implement a
transmitter under paragraph (a)(1)(ii)(A)
of this section shall provide the
certifications identified in paragraph
(b)(1)(iii) of this section. An ESAA
applicant proposing to implement a
transmitter under paragraph (a)(1)(ii)(B)
demonstrations identified in paragraph
(b)(1)(iv) of this section.
(i) Any ESAA applicant filing an
application pursuant to paragraph (a)(1)
of this section shall file three tables and/
or graphs depicting off-axis EIRP
density masks defined by 25.227(a)
and measured off-axis EIRP density
levels of the proposed earth station
antenna in the direction of the plane of
the GSO; the co-polarized EIRP density
in the elevation plane, that is, the plane
perpendicular to the plane of the GSO;
and cross-polarized EIRP density. Each
table shall provide the EIRP density
level at increments of 0.1 for angles
between 0 and 10 off-axis, and at
increments of 5 for angles between 10
and 180 off-axis.
(A) For purposes of the off-axis EIRP
density table in the plane of the GSO,
the off-axis angle is the angle in degrees
from the line connecting the focal point
of the antenna to the orbital location of
the target satellite, and the plane of the
GSO is determined by the focal point of
the antenna and the line tangent to the
arc of the GSO at the orbital position of
the target satellite.
VerDate Mar<15>2010
16:06 Mar 07, 2013
Jkt 229001
(B) For purposes of the off-axis copolarized EIRP density table in the
elevation plane, the off-axis angle is the
angle in degrees from the line
connecting the focal point of the
antenna to the orbital location of the
target satellite, and the elevation plane
is defined as the plane perpendicular to
the plane of the GSO defined in
paragraph (b)(1)(i)(A) of this section.
(C) For purposes of the crosspolarized EIRP density table, the off-axis
angle is the angle in degrees from the
line connecting the focal point of the
antenna to the orbital location of the
target satellite and the plane of the GSO
as defined in paragraph (b)(1)(i)(A) of
this section will be used.
(ii) An ESAA applicant shall include
a certification, in Schedule B, that the
ESAA antenna conforms to the gain
pattern criteria of 25.209(a) and (b),
that, combined with the maximum
input power density calculated from the
EIRP density less the antenna gain,
which is entered in Schedule B,
demonstrates that the off-axis EIRP
spectral density envelope set forth in
paragraphs (a)(1)(i)(A) through
(a)(1)(i)(C) of this section will be met
under the assumption that the antenna
is pointed at the target satellite.
(iii) An ESAA applicant proposing to
paragraph (a)(1)(ii)(A) of this section
shall:
(A) Demonstrate that the total tracking
error budget of their antenna is within
0.2 or less between the orbital location
of the target satellite and the axis of the
main lobe of the ESAA antenna. As part
of the engineering analysis, the ESAA
applicant must show that the antenna
pointing error is within three sigma (,)
from the mean value; and
(B) Demonstrate that the antenna
tracking system is capable of ceasing
emissions within 100 milliseconds if the
angle between the orbital location of the
target satellite and the axis of the main
lobe of the ESAA antenna exceeds 0.5.
(iv) An ESAA applicant proposing to
paragraph (a)(1)(ii)(B) of this section
shall:
(A) Declare, in its application, a
maximum antenna pointing error and
demonstrate that the maximum antenna
pointing error can be achieved without
exceeding the off-axis EIRP spectraldensity limits in paragraph (a)(1)(i) of
this section; and
(B) Demonstrate that the ESAA
transmitter can detect if the transmitter
exceeds the declared maximum antenna
pointing error and can cease
transmission within 100 milliseconds if
the angle between the orbital location of
the target satellite and the axis of the
PO 00000
Frm 00024
Fmt 4700
Sfmt 4700
main lobe of the ESAA antenna exceeds

the declared maximum antenna
pointing error, and will not resume
transmissions until the angle between
the orbital location of the target satellite
and the axis of the main lobe of the
ESAA antenna is less than or equal to
the declared maximum antenna
pointing error.
paragraph (a)(2) of this section and
using off-axis EIRP spectral-densities in
following certifications and
demonstration as exhibits to its earth
station application:
(i) A statement from the target satellite
operator certifying that the proposed
operation of the ESAA has the potential
to receive harmful interference from
adjacent satellite networks that may be
unacceptable.
(ii) A statement from the target
satellite operator certifying that the
power density levels that the ESAA
applicant provided to the target satellite
operator are consistent with the existing
coordination agreements between its
satellite(s) and the adjacent satellite
systems within 6 of orbital separation
from its satellite(s).
(iii) A statement from the target
satellite operator certifying that it will
include the power-density levels of the
ESAA applicant in all future
coordination agreements.
(iv) A demonstration from the ESAA
operator that the ESAA system will
comply with all coordination
agreements reached by the satellite
operator and is capable of detecting and
100 milliseconds when the transmitter
exceeds the off-axis EIRP spectraldensities supplied to the target satellite
operator.
implement an ESAA system under
paragraph (a)(3) of this section and
using variable power-density control of
individual simultaneously transmitting
co-frequency ESAA earth stations in the
same satellite receiving beam shall
provide the following certifications and
demonstration as exhibits to its earth
station application:
(i) The applicant shall make a detailed
showing of the measures it intends to
aggregate EIRP density from all
same satellite transponder at least 1 dB
below the off-axis EIRP density limits
defined in paragraphs (a)(1)(i)(A)
through (C) of this section. In this
context the term effective means that
E:\FR\FM\08MRR1.SGM
08MRR1
the resultant co-polarized and crosspolarized EIRP density experienced by
any GSO or non-GSO satellite shall not
exceed that produced by a single ESAA
transmitter operating at 1 dB below the
limits defined in paragraphs (a)(1)(i)(A)
through (C) of this section. The
applicant also must demonstrate that an
individual transmitter and the entire
ESAA system is capable of
100 milliseconds if the aggregate off-axis
EIRP-densities exceed the off-axis EIRP
density limits minus 1 dB, as set forth
in paragraph (a)(3)(i) of this section. The
International Bureau will place this
showing on public notice along with the
application.
(ii) An applicant proposing to
implement an ESAA system under
paragraph (a)(3)(ii) of this section that
uses off-axis EIRP spectral-densities in
following certifications, demonstration
and list of satellites as exhibits to its
earth station application:
(A) A detailed showing of the
measures the applicant intends to
aggregate EIRP density from all
same satellite transponder at the EIRP
density limits supplied to the target
satellite operator. The International
Bureau will place this showing on
Public Notice along with the
application.
(B) A statement from the target
proposed operation of the ESAA has the
potential to create harmful interference
to satellite networks adjacent to the
target satellite(s) that may be
unacceptable.
(C) A statement from the target
aggregate power-density levels that the
ESAA applicant provided to the target
satellite operator are consistent with the
existing coordination agreements
between its satellite(s) and the adjacent
satellite systems within 6 of orbital
separation from its satellite(s).
(D) A statement from the target
satellite operator certifying that it will
include the aggregate power-density
levels of the ESAA applicant in all
future coordination agreements.
(E) A demonstration from the ESAA
operator that the ESAA system is
capable of detecting and automatically
ceasing emissions within 100
milliseconds when an individual
transmitter exceeds the off-axis EIRP
spectral-densities supplied to the target
satellite operator and that the overall
system is capable of shutting off an
VerDate Mar<15>2010
16:06 Mar 07, 2013
Jkt 229001
individual transmitter or the entire

system if the aggregate off-axis EIRP
spectral-densities exceed those supplied
to the target satellite operator.
(F) An identification of the specific
satellite or satellites with which the
ESAA system will operate.
(4) There shall be an exhibit included
with the application describing the
geographic area(s) in which the ESAA
will operate.
(5) Any ESAA applicant filing for an
ESAA terminal or system and planning
to use a contention protocol shall
include in its application a certification
that will comply with the requirements
of paragraph (a)(4) of this section.
(6) The point of contact referred to in
paragraph (a)(5) of this section shall be
included in the application.
(7) Any ESAA applicant filing for an
ESAA terminal or system shall include
in its application a certification that will
comply with the requirements of
paragraphs (a)(6), (a)(9), (a)(10), and
(a)(11) of this section.
(8) All ESAA applicants shall submit
a radio frequency hazard analysis
determining via calculation, simulation,
or field measurement whether ESAA
terminals, or classes of terminals, will
produce power densities that will
exceed the Commissions radio
frequency exposure criteria. ESAA
applicants with ESAA terminals that
will exceed the guidelines in 1.1310 of
this chapter for radio frequency
radiation exposure shall provide, with
their environmental assessment, a plan
for mitigation of radiation exposure to
the extent required to meet those
guidelines. All ESAA licensees shall
ensure installation of ESAA terminals
on aircraft by qualified installers who
have an understanding of the antennas
radiation environment and the measures
best suited to maximize protection of
the general public and persons
operating the vehicle and equipment.
An ESAA terminal exhibiting radiation
exposure levels exceeding 1.0 mW/cm2
in accessible areas, such as at the
exterior surface of the radome, shall
have a label attached to the surface of
the terminal warning about the radiation
hazard and shall include thereon a
diagram showing the regions around the
terminal where the radiation levels
could exceed 1.0 mW/cm2.
(c)(1) Operations of ESAAs in the
frequency band in the radio line-of-sight
of the NASA TDRSS facilities on Guam
(latitude 133655 N, longitude
1445122 E) or White Sands, New
Mexico (latitude 322059 N, longitude
1063631 W and latitude 323240 N,
longitude 1063648 W) are subject to
coordination with the National
PO 00000
Frm 00025
Fmt 4700
Sfmt 4700
14931
Aeronautics and Space Administration

(NASA) through the National
Telecommunications and Information
Administration (NTIA) Interdepartment
Radio Advisory Committee (IRAC).
Licensees shall notify the International
Bureau once they have completed
coordination. Upon receipt of such
notification from a licensee, the
International Bureau will issue a public
notice stating that the licensee may
commence operations within the
coordination zone in 30 days if no party
has opposed the operations.
(2) When NTIA seeks to provide
similar protection to future TDRSS sites
that have been coordinated through the
IRAC Frequency Assignment
Subcommittee process, NTIA will notify
the Commissions International Bureau
that the site is nearing operational
status. Upon public notice from the
International Bureau, all Ku-band ESAA
licensees shall cease operations in the
14.014.2 GHz band within radio lineof-sight of the new TDRSS site until the
licensees complete coordination with
NTIA/IRAC for the new TDRSS facility.
coordination for the new TDRSS site.
Upon receipt of such notification from
a licensee, the International Bureau will
issue a public notice stating that the
licensee may commence operations
within the coordination zone in 30 days
if no party has opposed the operations.
The ESAA licensee then will be
permitted to commence operations in
the 14.014.2 GHz band within radio
line-of-sight of the new TDRSS site,
subject to any operational constraints
developed in the coordination process.
(d)(1) Operations of ESAA in the
frequency band in the radio line-of-sight
of radio astronomy service (RAS)
observatories observing in the 14.47
14.5 GHz band are subject to
coordination with the National Science
Foundation (NSF). The appropriate NSF
contact point to initiate coordination is
Electromagnetic Spectrum Manager,
NSF, 4201 Wilson Blvd., Suite 1045,
Arlington VA 22203, fax 7032929034,
email esm@nsf.gov. Licensees shall
notify the International Bureau once
they have completed coordination.
Upon receipt of the coordination
agreement from a licensee, the
has opposed the operations.
(2) A list of applicable RAS sites and
their locations can be found in
25.226(d)(2) Table 1.
E:\FR\FM\08MRR1.SGM
08MRR1
14932
(3) When NTIA seeks to provide

similar protection to future RAS sites
that have been coordinated through the
IRAC Frequency Assignment
Subcommittee process, NTIA will notify
the Commissions International Bureau
that the site is nearing operational
status. Upon public notice from the
International Bureau, all Ku-band ESAA
licensees shall cease operations in the
14.4714.5 GHz band within the
relevant geographic zone of the new
RAS site until the licensees complete
coordination for the new RAS facility.
coordination for the new RAS site and
shall submit the coordination agreement
to the Commission. Upon receipt of
such notification from a licensee, the
has opposed the operations. The ESAA
licensee then will be permitted to
commence operations in the 14.4714.5
GHz band within the relevant
coordination distance around the new
RAS site, subject to any operational
constraints developed in the
coordination process.
[FR Doc. 201304428 Filed 3713; 8:45 am]
Administration
50 CFR Part 679
[Docket No. 111207737214102]
RIN 0648XC543
Fisheries of the Exclusive Economic

Zone Off Alaska; Reallocation of
Pollock in the Bering Sea and Aleutian
Islands
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule.
AGENCY:
SUMMARY: NMFS is reallocating the

projected unused amounts of the Aleut
Corporations pollock directed fishing
allowance and the Community
Development Quota from the Aleutian
Islands subarea to the Bering Sea
subarea directed fisheries. These actions
are necessary to provide opportunity for
harvest of the 2013 total allowable catch
of pollock, consistent with the goals and
objectives of the Fishery Management
Plan for Groundfish of the Bering Sea
and Aleutian Islands Management Area.
DATES: Effective 1200 hrs, Alaska local
time (A.l.t.), March 8, 2013, until 2400
hrs, December 31, 2013, Alaska local
time.
Steve Whitney, 9075867269.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
BSAI exclusive economic zone
according to the Fishery Management
Plan for Groundfish of the Bering Sea
and Aleutian Islands Management Area
(FMP) prepared by the North Pacific
Fishery Management Council (Council)
under authority of the MagnusonStevens Fishery Conservation and
Management Act. Regulations governing
fishing by U.S. vessels in accordance
with the FMP appear at subpart H of 50

CFR part 600 and 50 CFR part 679.
In the Aleutian Islands subarea, the
portion of the 2013 pollock total
allowable catch (TAC) allocated to the
Aleut Corporations directed fishing
allowance (DFA) is 15,500 metric tons
(mt) and the Community Development
Quota (CDQ) is 1,900 mt as established
by the final 2013 and 2014 harvest
specifications for groundfish in the
BSAI (78 FR 13813, March 1, 2013).
As of March 1, 2013, the
Administrator, Alaska Region, NMFS,
(Regional Administrator) has
determined that 10,500 mt of Aleut
Corporations DFA and 1,900 mt of
pollock CDQ in the Aleutian Islands
subarea will not be harvested.
Therefore, in accordance with
679.20(a)(5)(iii)(B)(4), NMFS
reallocates 10,500 mt of Aleut
Corporations DFA and 1,900 mt of
pollock CDQ from the Aleutian Islands
subarea to the 2013 Bering Sea subarea
allocations. The 1,900 mt of pollock
CDQ is added to the 2013 Bering Sea
CDQ DFA. The remaining 10,500 mt of
pollock is apportioned to the AFA
Inshore sector (50 percent), AFA
catcher/processor sector (40 percent),
and the AFA mothership sector (10
percent). The 2013 pollock incidental
catch allowance remains at 33,699 mt.
As a result, the harvest specifications for
pollock in the Aleutian Islands subarea
included in the final 2013 and 2014
harvest specifications for groundfish in
the BSAI (78 FR 13813, March 1, 2013)
are revised as follows: 5,000 mt to Aleut
Corporations DFA and 0 mt to CDQ
pollock. Furthermore, pursuant to
679.20(a)(5), Table 3 of the final 2013
and 2014 harvest specifications for
groundfish in the BSAI (78 FR 13813,
March 1, 2013) is revised to make 2013
pollock allocations consistent with this
reallocation. This reallocation results in
adjustments to the 2013 Aleut
Corporation and CDQ pollock
allocations established at 679.20(a)(5).
TABLE 3FINAL 2013 AND 2014 ALLOCATIONS OF POLLOCK TACS TO THE DIRECTED POLLOCK FISHERIES AND TO THE
CDQ DIRECTED FISHING ALLOWANCES (DFA) 1
[Amounts are in metric tons]
2013 A
season 1
2013
Allocations
Area and sector
Bering Sea subarea ..............................................................

CDQ DFA ..............................................................................
ICA1 .......................................................................................
AFA Inshore ..........................................................................
AFA Catcher/Processors 3 ....................................................
Catch by C/Ps .......................................................................
Catch by CVs 3 ......................................................................
Unlisted C/P Limit 4 ...............................................................
AFA Motherships ...................................................................
VerDate Mar<15>2010
16:06 Mar 07, 2013
Jkt 229001
PO 00000
1,259,400
126,600
33,699
549,551
439,640
402,271
37,369
2,198
109,910
Frm 00026
A season
DFA
n/a
50,640
n/a
219,820
175,856
160,908
14,948
879
43,964
Fmt 4700
2013 B
season 1
SCA
harvest
limit 2
n/a
35,448
n/a
153,874
123,099
n/a
n/a
n/a
30,775
Sfmt 4700
B season
DFA
n/a
75,960
n/a
329,730
263,784
241,363
22,422
1,319
65,946
2014 A
season 1
2014
Allocations
1,247,000
124,700
33,669
544,316
435,452
398,439
37,013
2,177
108,863
E:\FR\FM\08MRR1.SGM
A season
DFA
n/a
49,880
n/a
217,726
174,181
159,376
14,805
871
43,545
SCA
harvest
limit 2
n/a
34,916
n/a
152,408
121,927
n/a
n/a
n/a
30,482
2014 B
season 1
B season
DFA
n/a
74,820
n/a
326,589
261,271
239,063
22,208
1,306
65,318
08MRR1
PUBLIC NOTICE
445 12th St., S.W.
Washington, D.C. 20554
News Media Information 202 / 418-0500

Internet: http://www.fcc.gov
TTY: 1-888-835-5322
DA: 13-446
RELEASED: MARCH 15, 2013
GUIDANCE ON OBTAINING EXPERIMENTAL AUTHORIZATIONS FOR

COMMERCIAL SPACE LAUNCH ACTIVITIES
The purpose of this Public Notice is to provide guidance for commercial space launch activities
and related spacecraft1 use that require the use of spectrum for operational communications
related to launch, cargo delivery, and/or re-entry.
Currently, commercial space launch operations use radio frequencies allocated exclusively for
federal government use, and the scope of such operations often encompass use of radio
transmissions from within and beyond the Earths atmosphere. The Federal Communications
Commission (FCC) may authorize use of these radio frequencies on a temporary, noninterference basis through the FCCs Experimental Authorization process. This Public Notice
provides guidance to applicants on how to obtain an Experimental Authorization for
communications used for commercial space launch activities and related cargo transport
activities. This Public Notice also provides guidance concerning experimental licensing of
related non-government ground stations and ground testing facilities.
Overview: The Office of Engineering and Technology (OET) at the FCC is responsible for
experimental authorizations, and processes authorization requests through its Experimental
Authorization system (https://apps.fcc.gov/oetcf/els/index.cfm). To apply, applicants must first
obtain an FCC Registration Number which can be done online at
https://fjallfoss.fcc.gov/coresWeb/publicHome.do. They can then apply for an Experimental
Authorization using the Special Temporary Authority (STA) website link available at
https://apps.fcc.gov/oetcf/els/forms/STANotificationPage.cfm. Because of the time required for
processing such an application for experimental authorization, we recommend that applicants
apply at least 90 days in advance of the commercial space launch, related cargo transport
activity, or ground testing activity. For coordination purposes, we also recommend that
applicants contact OET in advance of formally submitting Experimental Authorization
applications to the FCC.
By spacecraft, we are referring to a cargo delivery vehicle that is used in the context of an FAAlicensed launch and/or re-entry.
An Experimental Authorization is required for a commercial space launch vehicle (i.e., rocket)
that will use radio frequencies during a launch. Radio frequencies are often used during launches
for telemetry the sending of information from the launch vehicle to ground controllers during
the launch. Radio frequencies are also often used by a transponder placed on the launch vehicle
for radar tracking during the launch.
A separate Experimental Authorization is required for the use of radio frequencies by a
spacecraft launched into space by the launch vehicle. Spacecraft may use such radio frequencies
for communications after separating from the launch vehicle. However, spacecraft that use radio
frequencies that the Commission licenses under existing FCC rules such as communications
satellites licensed under our Part 25 rules do not need to obtain an Experimental Authorization.
A separate Experimental Authorization is required to operate a ground station that will
communicate with the commercial space launch vehicle or spacecraft. Ground stations
belonging to and operated by the United States government do not require an Experimental
Authorization but instead are authorized through the National Telecommunications and
Information Administration. A separate Experimental Authorization is also required to operate a
ground testing facility for testing the radio communications equipment that will be used in
commercial space launch activities.
Required Information: Applicants applying for an Experimental Authorization for
commercial space launch and related cargo transport activities should provide the following
information through the Experimental Authorization system:
a. Technical information including frequency, power, emission, latitude and
longitude coordinates of the launch site or test operations.
b. An overview of the proposed launch or testing including, if appropriate,
identifying the launch facility and the overall mission.
c. The anticipated orbital parameters or range of orbital parameters (altitude,
inclination) in which the launch vehicle or related spacecraft will operate.
d. A 24-hour contact for interference issues.
e. If the applicant is also requesting authorization to operate an earth station to
communicate with the launch vehicle or spacecraft, it should provide
the frequency, power, emission, latitude and longitude coordinates for the earth
station. If the applicant is planning to communicate with an earth station operated
by another company, the United States government, or one located outside the
United States, its territories and possessions, the applicant should include
technical parameters of the earth station in an exhibit to the application for
reference purposes only.
The Federal Aviation Administration (FAA) and the National Aeronautics and Space
Administration (NASA) have developed and administer safety and policy processes for launch,
cargo delivery to the International Space station, and re-entry activities, including processes in
connection with orbital debris mitigation and re-entry risk. Accordingly, applicants need not
2
submit orbital debris mitigation information to the FCC in connection with launch, cargo
delivery, or re-entry activities that will be reviewed or approved through FAA and NASA
processes. Applicants should coordinate those activities through the FAA and NASA, as
appropriate.
Non-Interference Basis: All Experimental Authorizations are granted on a non-interference
basis, i.e., the licensed operations can neither cause interference nor claim protection from
interference.
Coordination with Federal Governmental Agencies: Because the spectrum in which many
applicants will seek to operate is allocated for Federal use, the FCC will coordinate its use with
NTIA. This coordination may result in the experimental authorization being subject to special
conditions.
Length of Experimental Authorization: Experimental Authorizations are valid for a sixmonth period from the date of grant and are renewable. Applicants must obtain a new
authorization for all communications associated with each launch.
For further information contact: Anthony Serafini at 202-418-2456 or via email at
anthony.serafini@fcc.gov or Walter Johnston at 202-418-0807 or via e-mail at
walter.johnston@fcc.gov.
- FCC -
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DEPUTY SECRETARY OF DEFENSE

1010 DEFENSE PENTAGON
WASHINGTON, DC 20301-1010
July 5, 2011
Incorporating Change 3, April 25, 2013
MEMORANDUM FOR SECRETARIES OF THE MILITARY DEPARTMENTS
CHAIRMAN OF THE JOINT CHIEFS OF STAFF
UNDER SECRETARIES OF DEFENSE
DEPUTY CHIEF MANAGEMENT OFFICER
DIRECTOR, COST ASSESSMENT AND PROGRAM
EVALUATION
DIRECTOR, OPERATIONAL TEST AND EVALUATION
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
INSPECTOR GENERAL OF THE DEPARTMENT OF DEFENSE
ASSISTANT SECRETARIES OF DEFENSE
ASSISTANTS TO THE SECRETARY OF DEFENSE
DIRECTOR, ADMINISTRATION AND MANAGEMENT
DIRECTOR, NET ASSESSMENT
DIRECTORS OF THE DEFENSE AGENCIES
DIRECTORS OF THE DoD FIELD ACTIVITIES
SUBJECT:
Directive-Type Memorandum (DTM) 11-008, Use of Excess Ballistic Missiles

for Space Launch
References: See Attachment 1

Purpose. This DTM establishes DoD policy, assigns responsibilities, and outlines
procedures for converting excess U.S. Government (USG) ballistic missile assets to launch space
payloads, in accordance with section 50134 of title 51, United States Code (U.S.C.) (Reference
(a)) and National Security Presidential Directive 40 (Reference (b)). This DTM is effective upon
its publication to the DoD Issuances Website; it shall be incorporated into DoD Instruction
(DoDI) 3100.12 (Reference (c)). This DTM shall expire effective January 3, 2014.
Applicability. This DTM applies to OSD, the Military Departments, the Office of the
Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office
of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field
Activities, and all other organizational entities within the DoD (hereinafter referred to
collectively as the DoD Components).
Policy. It is DoD policy to prevent the proliferation of missile technology and limit the
adverse impact of the use of excess ballistic missiles on U.S. space transportation capabilities.
Excess U.S. ballistic missile assets shall be converted for use as space transportation vehicles
only in accordance with References (a) and (b).
DTM 11-008
USG agencies may use an excess ballistic missile to launch a payload into orbit on a
case-by-case basis, when:
o The use of such missile results in a cost savings to the USG when compared to
the cost of acquiring space transportation services from U.S. commercial
providers.
o The payload being launched supports the sponsoring agencys mission, and
the modified excess ballistic missile asset meets all mission requirements,
including performance, schedule, and risk requirements.
o The use of such missile is consistent with U.S. obligations under treaties and
other international agreements in accordance with DoD Directive 2060.1
(Reference (d)).
o The use of such missile is approved by the Secretary of Defense.
Use of excess ballistic missile assets shall be certified to the Committee on Armed
Services and the Committee on Science of the House of Representatives, and to the
Committee on Armed Services and the Committee on Commerce, Science, and
Transportation of the Senate, at least 30 days before the planned conversion in
accordance with Reference (a).
Acquisition of space launch services using converted excess ballistic missile assets
shall ensure required competition at the prime and subcontract level necessary to
sustain and enhance the U.S. space launch industry base, and limit the impact on the
U.S. space transportation industry. Impact on the U.S. space transportation industry
shall consider the broader launch industrial base and viable established and emerging
launch providers.
Responsibilities. See Attachment 2.

Procedures. See Attachment 3.
Releasability. This DTM is approved for public release and is available on the Internet
from the DoD Issuances Website at http://www.dtic.mil/whs/directives.
Attachments:
As stated
Change 3, 4/25/2013
DTM 11-008
ATTACHMENT 1
REFERENCES
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Section 50134 of title 51, United States Code

National Security Presidential Directive-40, U.S. Space Transportation Policy,
December 21, 2004
DoD Instruction 3100.12, Space Support, September 14, 2000
DoD Directive 2060.1, Implementation of, and Compliance with, Arms Control
Agreements, January 9, 2001
DoD Instruction 5025.01, DoD Directives Program, October 28, 2007
Committee on National Security Systems Policy-12, National Information Assurance
Policy for Space Systems Used to Support National Security Missions, March 20, 2007
Section 2304 of title 10, United States Code
Change 3, 4/25/2013
Attachment 1
DTM 11-008
ATTACHMENT 2
RESPONSIBILITIES
1. UNDER SECRETARY OF DEFENSE FOR POLICY (USD(P)). The USD(P) shall:

a. Develop, coordinate, and establish policy, in accordance with DoDI 5025.01
(Reference (e)), for matters regarding conversion of excess ballistic missile assets for space
launch and oversee DoD implementation of References (a) and (b).
b. Coordinate requests for the proposed conversion of excess ballistic missile assets to
launch space payloads with the Under Secretary of Defense for Acquisition, Technology, and
Logistics (USD(AT&L)), Assistant Secretary of Defense for Networks and Information
Integration/DoD Chief Information Officer (ASD(NII)/DoD CIO), General Counsel of the DoD
(GC, DoD), the Chairman of the Joint Chiefs of Staff, and, as appropriate, the Secretaries of the
Military Departments.
c. Forward coordinated requests to use excess ballistic missiles for space launches to the
Secretary of Defense.
d. For requests to launch non-DoD payloads using excess ballistic missiles that are
approved by the Secretary of Defense, coordinate with the Assistant Secretary of Defense for
Legislative Affairs (ASD(LA)) and the requesting agency to ensure appropriate notification to
the Committee on Armed Services and the Committee on Science of the House of
Representatives, and to the Committee on Armed Services and the Committee on Commerce,
Science, and Transportation of the Senate, at least 30 days prior to the planned conversion in
accordance with Reference (a).
2. USD(AT&L). The USD(AT&L) shall review and coordinate on requests for proposed use of
excess ballistic missiles to launch space payloads to ensure that such requests:
a. Are consistent with international treaty obligations in accordance with Reference (d).
b. Contain valid cost comparison data to justify cost savings to the USG when compared
to the cost of acquiring space transportation services from U.S. commercial providers.
c. Address potential impacts on the U.S. space transportation industry and industrial
base.
d. Meet the proposing agencys mission requirements and can be supported by space
launch range infrastructure, including compliance with the requirements in Committee on
National Security Systems Policy-12 (Reference (f)).
Change 3, 04/25/2013
Attachment 2
DTM 11-008
3. HEADS OF THE DoD COMPONENTS. The Heads of the DoD Components shall:
a. Request approval to use excess ballistic missiles to launch DoD space payloads in
accordance with Attachment 3 of this DTM.
b. Certify that such use is consistent with References (a) and (b).
c. Forward certification for approved use to Congress 30 days prior to the planned
conversion in accordance with Reference (a).
d. Develop public affairs (PA) guidance for all Component activities for proposed use of
excess ballistic missiles to launch space payloads.
Change 3, 04/25/2013
Attachment 2
DTM 11-008
ATTACHMENT 3
PROCEDURES
1. EVALUATION FOR USE. The factors in this section shall be considered when evaluating
the potential use of excess ballistic missile assets to launch space payloads.
a. Mission requirements of the agency, including performance, schedule, and risk
requirements. This shall include consideration of all viable U.S. launch vehicles based, at a
minimum, on the following factors:
(1) Quality and maturity of design.
(2) Test history.
(3) Launch history.
(4) Sponsoring agency selection criteria.
(5) Sponsoring agency risk tolerance for cost, schedule, and technical impacts.
b. Cost savings to the Federal Government when compared to the cost of acquiring space
transportation services from U.S. commercial providers. Cost savings will be based on total
mission costs to meet sponsoring agencys selection criteria.
c. Impact on the U.S. space launch industry and industrial base including overall impact
on both the selected provider and the non-selected provider(s) at the prime and subcontract level.
d. Consistency with U.S. international obligations.
2. PREPARING REQUESTS. Requests to use excess ballistic missiles to launch space

payloads shall address compliance with References (a) and (b) and include:
a. A mission or project overview with justification that the proposed use of excess
ballistic missiles to launch space payloads supports the sponsoring agencys mission.
(1) Include a description of the mission launch requirements addressing
performance, schedule, and risk considerations.
(2) Explain the decision timeline and factors involved in selecting the launch
vehicle in order to meet the desired mission schedule.
b. An assessment of the excess ballistic missile use being consistent with U.S.
obligations under treaties and other international agreements to which the United States is a
Change 3, 4/25/2013
Attachment 3
DTM 11-008
party, including the Missile Technology Control Regime guidelines, the New Strategic Arms
Reduction Treaty, and the Intermediate-Range Nuclear Forces Treaty.
c. An assessment and certification that the proposed use:
(1) Results in a total mission cost savings to the USG when compared to the cost
of acquiring space transportation services from U.S. commercial launch services that would also
meet mission requirements, including performance, schedule, and risk.
(a) The request shall include the results of a market survey of the U.S.
commercial launch vehicles available for consideration when the launch vehicle decision needs
to be made, and a business case and suitability analysis of the available, alternative U.S. launch
vehicles. The request shall include a detailed cost analysis of each alternative considered and
compared to the use of excess ballistic missiles.
(b) The request shall include a summary of the acquisition strategy or
contracting approach and consider available acquisition strategies consistent with section 2304 of
title 10, U.S.C. (Reference (g)).
(2) Limits the impact on the U.S. space transportation industry. Requests shall
include an assessment of the impact on the U.S. commercial launch industry caused by selecting
the excess ballistic missile variant for the launch vehicle.
d. PA guidance, which shall include how to respond to inquiries on the proposed use of
an excess ballistic missile asset including mission, industry impact, and treaty compliance.
3. PROCESSING REQUESTS. Requests shall be submitted to the USD(P) as soon as possible

but no later than 120 days before the planned conversion.
a. Requests shall be coordinated with the USD(AT&L), ASD(NII)/DoD CIO, GC, DoD,
the Chairman of the Joint Chiefs of Staff and, as appropriate, the Secretaries of the Military
Departments.
b. Coordinated requests shall be submitted to the Secretary of Defense for approval
within 60 days of receipt from the requesting Military Department or Defense Agency but no
later than 60 days prior to the planned conversion.
4. REPORTING. At least 30 days prior to the planned conversion, the requesting Military
Department or Defense Agency, in coordination with the ASD(LA), shall forward certification of
approved use to the Committee on Armed Services and the Committee on Science of the House
of Representatives, and to the Committee on Armed Services and the Committee on Commerce,
Science, and Transportation of the Senate, in accordance with Reference (a).
Change 3, 4/25/2013
Attachment 3
DTM 11-008
GLOSSARY
ABBREVIATIONS AND ACRONYMS
ASD(LA)
Assistant Secretary of Defense for Legislative Affairs
ASD(NII)/DoD CIO Assistant Secretary of Defense for Networks and Information
Integration/DoD Chief Information Officer
DoDI
DTM
DoD Instruction
Directive-Type Memorandum
GC, DoD
General Counsel of the DoD
PA
public affairs
U.S.C.
USD(AT&L)
USD(P)
USG
United States Code

Under Secretary of Defense for Acquisition, Technology, and Logistics
Under Secretary of Defense for Policy
United States Government
Change 3, 4/25/2013
Glossary
29428
Federal Register / Vol. 78, No. 97 / Monday, May 20, 2013 / Notices
OMB Control Number: 21200535.

Title: Anti-Drug Program for
Personnel Engaged in Specified
Aviation Activities.
Form Numbers: There are no FAA
forms associated with this collection of
information.
Type of Review: Renewal of an
information collection.
Background: The FAA mandates
specified aviation entities to conduct
drug and alcohol testing under its
regulations, Antidrug and Alcohol
Misuse Prevention Programs for
Personnel Engaged in Specified
Aviation Activities (14 CFR Part 121,
appendices I and J), 49 U.S.C. 31306
(Alcohol and controlled substances
testing), and the Omnibus
Transportation Employee Testing Act of
1991 (the Act). The FAA uses
information collected for determining
program compliance or non-compliance
of regulated aviation employers,
oversight planning, determining who
must provide annual MIS testing
information, and communicating with
entities subject to the program
regulations. In addition, the information
is used to ensure that appropriate action
is taken in regard to crew members and
other safety-sensitive employees who
have tested positive for drugs or alcohol,
or have refused to submit to testing.
Respondents: Approximately 7,000
affected entities annually.
Frequency: Information is collected
on occasion.
Estimated Average Burden per
Response: 5 minutes.
Estimated Total Annual Burden:
22,902 hours.
Send comments to the FAA
at the following address: Ms. Kathy
DePaepe, Room 126B, Federal Aviation
Administration, AES200, 6500 S.
MacArthur Blvd., Oklahoma City, OK
73169.
Public Comments Invited: You are
asked to comment on any aspect of this
information collection, including (a)
Whether the proposed collection of
information is necessary for FAAs
performance; (b) the accuracy of the
estimated burden; (c) ways for FAA to
enhance the quality, utility and clarity
of the information collection; and (d)
ways that the burden could be
minimized without reducing the quality
of the collected information. The agency
will summarize and/or include your
comments in the request for OMBs
clearance of this information collection.
mstockstill on DSK4VPTVN1PROD with NOTICES
ADDRESSES:
VerDate Mar<15>2010
19:09 May 17, 2013
Jkt 229001
Issued In Washington, DC, on May 15,

2013.
Albert R. Spence,
FAA Assistant Information Collection
Clearance Officer, IT Enterprises Business
Services Division, AES200.
[FR Doc. 201311958 Filed 51713; 8:45 am]
Federal Aviation Administration
Office of Commercial Space
Transportation; Notice of Availability
of a Record of Decision (ROD) To Issue
a Reentry License to Lockheed Martin
Corporation for the Reentry of the
Orion Multi-Purpose Crew Vehicle
(MPCV) From Earth Orbit to a Location
in the Pacific Ocean
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of availability of the
ROD.
AGENCY:
In accordance with the

National Environmental Policy Act of
1969, as amended (NEPA; 42 United
States Code 4321 et seq.), Council on
Environmental Quality NEPA
implementing regulations (40 Code of
Federal Regulations parts 1500 to 1508),
and FAA Order 1050.1E, Change 1,
Environmental Impacts: Policies and
Procedures, the FAA is announcing the
availability of the ROD to issue a reentry
license to Lockheed Martin Corporation
for the reentry of the Orion MPCV from
Earth orbit to a location in the Pacific
Ocean.
SUMMARY:
Mr.
Daniel Czelusniak, Environmental
Specialist, Office of Commercial Space
Transportation, Federal Aviation
Administration, 800 Independence
Avenue SW., Room 325, Washington,
DC 20591; email
Daniel.Czelusniak@faa.gov; or phone
(202) 2675924.
SUPPLEMENTARY INFORMATION: The
potential environmental consequences
of the Orion MPCV reentering the
Earths atmosphere and landing in the
Pacific Ocean were analyzed in the 2008
Final Constellation Programmatic
Environmental Impact Statement (2008
PEIS) prepared by the National
Aeronautics and Space Administration.
Because the FAA was not a cooperating
agency on the 2008 PEIS, the FAA
adopted in part the 2008 PEIS and
recirculated it as a Final EIS in
accordance with 40 CFR 1506.3(b). A
public notice of FAAs adoption and
recirculation of the 2008 PEIS was
PO 00000
Frm 00111
Fmt 4703
Sfmt 4703
published in the Federal Register on

November 30, 2012.
The ROD provides a description of the
Proposed Action and the No Action
Alternative. It includes a discussion of
the potential environmental impacts
associated with the Proposed Action for
each applicable resource area, as
analyzed in the 2008 PEIS. The 2008
PEIS serves as the primary reference and
basis for preparation of the ROD. The
2008 PEIS documents the analysis of the
potential environmental consequences
associated with the above referenced
Proposed Action and a No Action
Alternative, and is made part of the
ROD. The FAA adopted the 2008 PEIS
in part pursuant to the requirements of
NEPA, CEQ Regulations, and FAA
Order 1050.1E, Change 1. Furthermore,
the ROD represents the FAAs final
environmental determination and
approval to support the issuance reentry
license to Lockheed Martin Corporation
for the reentry of the Orion MPCV from
Earth orbit to a location in the Pacific
Ocean.
The FAA has posted the ROD on the
FAA Web site at http://www.faa.gov/
about/office_org/headquarters_offices/
ast/environmental/nepa_docs/review/
documents_completed/.
Issued in Washington, DC, on: May 9,
2013.
Daniel P. Murray,
Acting Manager, Space Transportation
Development Division.
[FR Doc. 201311929 Filed 51713; 8:45 am]
Availability of Noise Compatibility
Program for Chicago Midway
International Airport, Chicago, Illinois
Federal Aviation
ACTION: Notice.
AGENCY:
The FAA announces its

determination that the noise exposure
maps submitted by the City of Chicago
Department of Aviation for Chicago
Midway International Airport under the
provisions of 49 U.S.C. 47501 et. seq
(formerly the Aviation Safety and Noise
Abatement Act, hereinafter referred to
as the Act) and 14 CFR Part 150
(hereinafter referred to as Part 150)
are in compliance with applicable
requirements. The FAA also announces
that it is reviewing a proposed noise
compatibility program that was
submitted for Chicago Midway
International Airport under Part 150 in
SUMMARY:
E:\FR\FM\20MYN1.SGM
20MYN1
42994
Federal Register / Vol. 78, No. 138 / Thursday, July 18, 2013 / Notices
investors, or otherwise in furtherance of

the purposes of the Act.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
TKELLEY on DSK3SPTVN1PROD with NOTICES
Electronic Comments
Use the Commissions Internet
comment form (http://www.sec.gov/
rules/sro.shtml) or
Send an email to rulecomments@sec.gov. Please include File
Number SRCME201308 on the
subject line.
Paper Comments
Send paper comments in triplicate
to Elizabeth M. Murphy, Secretary,
Securities and Exchange Commission,
100 F Street NE., Washington, DC
205491090.
All submissions should refer to File
Number SRCME201308. This file
number should be included on the
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commissions
Internet Web site (http://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
amendments, all written statements
with respect to the proposed rule
change that are filed with the
Commission, and all written
communications relating to the
proposed rule change between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
available for Web site viewing and
printing in the Commissions Public
Reference Room, 100 F Street NE.,
Washington, DC 20549, on official
business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such
filing also will be available for
inspection and copying at the principal
office of CME and on CMEs Web site
(http://www.cmegroup.com/marketregulation/files/sec_19b-4_13-08.pdf).
All comments received will be posted
without change; the Commission does
not edit personal identifying
information from submissions. You
should submit only information that
you wish to make available publicly. All
submissions should refer to File
Number SRCME201308 and should
be submitted on or before August 8,
2013.
VerDate Mar<15>2010
17:20 Jul 17, 2013
Jkt 229001
For the Commission, by the Division of

Trading and Markets, pursuant to delegated
authority.8
Elizabeth M. Murphy,
Secretary.
[FR Doc. 201317195 Filed 71713; 8:45 am]
Office of Commercial Space
Transportation
Waiver of 14 CFR 437.29 and 437.55(a)
for Scaled Composites, LLC
SMALL BUSINESS ADMINISTRATION
Federal Aviation
ACTION: Notice of waiver.
[Disaster Declaration #13579 and #13580]
SUMMARY:
AGENCY:
Illinois Disaster Number IL00041

U.S. Small Business
Administration.
AGENCY:
ACTION:
Amendment 4.
This is an amendment of the

Presidential declaration of a major
disaster for the State of Illinois (FEMA
4116DR), dated 05/10/2013.
Incident: Severe storms, straight-line
winds and flooding.
Incident Period: 04/16/2013 through
05/05/2013.
Effective Date: 07/02/2013.
Physical Loan Application Deadline
Date: 07/24/2013.
EIDL Loan Application Deadline Date:
02/10/2014.
SUMMARY:
Submit completed loan

applications to: U.S. Small Business
Administration, Processing and
Disbursement Center, 14925 Kingsport
Road, Fort Worth, TX 76155.
ADDRESSES:
A
Escobar, Office of Disaster Assistance,
U.S. Small Business Administration,
409 3rd Street SW., Suite 6050,
The notice
of the Presidents major disaster
declaration for the State of Illinois,
dated 05/10/2013 is hereby amended to
extend the deadline for filing
applications for physical damages as a
result of this disaster to 07/24/2013.
All other information in the original
declaration remains unchanged.
(Catalog of Federal Domestic Assistance

Numbers 59002 and 59008)
James E. Rivera,
Associate Administrator for Disaster
Assistance.
[FR Doc. 201317250 Filed 71713; 8:45 am]
PO 00000
8 17
CFR 200.303(a)(12).
Frm 00067
Fmt 4703
Sfmt 4703
This notice concerns a waiver

to Scaled Composites, LLC (Scaled)
from the requirements of 14 CFR 437.29
and 437.55(a) to provide the FAA a
hazard analysis that identifies,
mitigates, and verifies and validates
mitigation measures for hazards created
by software and human error. The FAA
finds that a waiver is in the public
interest and will not jeopardize public
health and safety, safety of property,
and national security and foreign policy
interests of the United States.
FOR FURTHER INFORMATION CONTACT: For
technical questions concerning this
waiver, contact Michael Kelly, Chief
Engineer, Commercial Space
Transportation, AST004, 800
Independence Avenue SW.,
Washington, DC 20591; telephone: (202)
2677588; email:
Michael.S.Kelly@faa.gov. For legal
questions concerning this waiver,
contact Sabrina Jawed, Attorneyadvisor, Space Law Branch, AGC250,
Office of the Chief Counsel, Regulations
Division, Federal Aviation
Administration, 800 Independence
Avenue SW., Washington, DC 20591;
telephone: (202) 2678839; email:
Sabrina.Jawed@faa.gov.
Background
On May 23, 2012, the FAAs Office of
Commercial Space Transportation (AST)
issued Scaled Experimental Permit No.
12007. On March 6, 2013, Scaled
submitted an application to renew its
experimental permit, which was to
expire on May 22, 2013. In its
application for renewal, Scaled
included modifications to its permit to
reflect changes made to SpaceShipTwo
(SS2). In March of 2013, Scaled
provided updates to the original hazard
analysis for FAA assessment. Upon
reviewing Scaleds application to renew
its permit, the FAA determined that
Scaled did not fully meet the
requirements of 14 CFR 437.29 and
437.55(a).
Scaled did not meet these
requirements because it did not identify
human or software error as causing
E:\FR\FM\18JYN1.SGM
18JYN1
hazards. It did not identify these errors
as causing hazards on the grounds that
the mitigations it had in place would
prevent the hazards from occurring.
Scaled emphasizes aircraft and
spacecraft design redundancy, flight and
maintenance procedures, and ground
and flight crew training to mitigate
against hazards caused by human and
software errors.
Scaled employs a number of different
approaches to safety derived from its
aviation heritage. These include a
training program, an incremental
approach to flight testing, use of chase
planes, use of a two-pilot model, the
remoteness of its operating area and use
of a winged vehicle.
i. Public Health and Safety or Safety of

Property
The FAAs Authority and Waiver

Criteria
(1) Training Program
The FAA issues experimental permits

under authority granted to the Secretary
of Transportation under 51 U.S.C. 50906
and delegated to the FAA
Administrator. The FAA may waive an
experimental permit requirement if the
waiver (1) Will not jeopardize public
health and safety or safety of property,
(2) will not jeopardize national security
and foreign policy interests of the
United States, and (3) will be in the
public interest. 51 U.S.C. 50905(b)(3); 14
CFR 404.5(b).
A. Scaled did not Meet the
Requirements of Sections 437.29 and
437.55(a)
Section 437.29 requires an applicant
for a permit to perform a hazard analysis
that complies with section 437.55(a),
and to provide the FAA all results of
each step of the hazard analysis
required by section 437.55(a). Section
437.55(a) requires an applicant to
perform a hazard analysis that
identifies, mitigates, and validates and
verifies mitigation measures for each
hazard. Scaled did not identify and
describe all hazards resulting from
human and software error as part of its
hazard analysis, and therefore did not
fully satisfy sections 437.29 and
437.55(a).
B. Operation of the SpaceShipTwo

Vehicle
The FAA waives the hazard analysis
requirements of sections 437.29 and
437.55(a) for Scaled for software and
human error because the SS2 operation
will not jeopardize public health and
safety or safety of property, national
security or foreign policy interests of the
United States, and is in the public
interest.
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A hazard analysis serves to reduce

risk to the public by limiting the
possibility of a vehicle mishap.
Although Scaled did not complete its
hazard analysis as required by the
regulations, the combination of its
training program, incremental approach
to flight testing, use of chase planes, and
two-pilot model, as well as the limited
duration of the permit and thus the
waiver, the remoteness of its operating
area and its use of a winged vehicle
combine to allow the FAA to find that
Scaleds activities will not jeopardize
public health and safety or safety of
property.
Although Scaleds hazard analysis
under section 437.55(a) did not
associate the hazards it mitigated
specifically with whether they were
caused by human error, Scaleds
training program provides part of the
basis for the FAA to find that Scaleds
permitted activities will not jeopardize
property. Scaleds approach to flight
safety and training derives from aviation
flight testing. Scaled generally requires
that its pilots have at least 1,500 hours
of flight time, as well as specific
experience in jet and glider aircraft.
Scaled uses three different devices to
train SS2 pilots and crew. The devices
are (1) An SS2 simulator, (2) a
WhiteKnightTwo aircraft, and (3) an
aerobatic aircraft, or other g tolerance
training device.
Scaleds SS2 simulator mimics the
SS2 itself. The simulator duplicates the
SS2 cabin layout, including the
avionics, switches, controls, and
windows. The simulator also provides
wrap-around video simulation and
sound effects. This gives the pilot depth
perception and the ability to make
accurate landing approaches and other
maneuvers. The simulator also mimics
SS2 flight dynamics. The simulator has
the ability to dynamically simulate both
control forces and effectiveness in all
flight regimes. The control forces are
dynamically linked to aerodynamics of
all phases of flight. The simulator also
simulates wind profiles, thrust
asymmetries, and an array of failure
conditions.
Using flight simulators allows for indepth training, including the practice of
critical emergency procedures, in a safer
environment. Scaleds use of a flight
simulator that mimics the SS2 allows
Scaleds pilots to become familiar with
how the SS2 operates and responds
during launch, flight, and reentry, and
PO 00000
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Fmt 4703
Sfmt 4703
42995
helps improve the SS2 pilots response

time. Simulators allow pilots to gain
experience flying the spacecraft.
Simulators also allow pilots and crew to
practice flying in emergency or other
flight conditions that would be
dangerous to recreate in the airspace.
Scaled also uses its flight simulator to
develop mission specific trajectories,
identify the envelopes of potential
failure trajectories, and validate flight
rules and abort procedures. The
simulator models nominal and offnominal flight environment and
incorporates reasonably foreseeable
failure scenarios. Scaled updates the
simulations based on data obtained from
actual flights to improve the simulators
fidelity and accuracy. Scaled runs its
simulator 1.4 times faster than actual
flight in order to ensure that pilots and
ground crew are trained to respond
quickly to various flight conditions and
anomalies. By practicing various
nominal and non-nominal scenarios in
the SS2 simulator, pilots are able to
rehearse how to operate the SS2. This
training also enhances the speed and
reaction time of the crew, and allows
the crew to practice working together to
run various procedures, such as going
through the checklist. Continuous
updates ensure that the simulator
provides the most accurate modeling of
the way the vehicle will perform at
various altitudes and attitudes, so that
the crew can best experience how the
SS2 will react during flight.
SS2s flight crew also uses
WhiteKnightTwo for training because it
replicates SS2s flight profile. When the
WhiteKnightTwos spoil-flaps are
deployed, it has a similar flight path and
descent profile to the SS2. SS2 pilots fly
at least three WhiteKnightTwo flights
simulating SS2 approaches prior to an
SS2 flight. Flight crew are able to fly in
the WhiteKnightTwo in order to
practice what it will be like when they
are flying the SS2.
Use of the WhiteKnightTwo builds
upon the simulator training. While the
simulator mimics flight conditions in
most cases, it is not a multi-axis
simulator, which means it will not pitch
in a vertical motion and not always
mimic real flight conditions. The
WhiteKnightTwo is able to replicate the
full flight and the actual feel of flight in
the SS2. Additional training in the
WhiteKnightTwo, which has a cockpit
that mimics the SS2, allows pilots and
crew to experience more accurate flight
conditions than the simulator in some
instances.
Lastly, as part of ongoing g tolerance
training, the SS2 crew completes an
aerobatic training course that covers g
tolerance, motion sickness, and unusual
E:\FR\FM\18JYN1.SGM
18JYN1
42996
attitudes. This training is performed in

a small aerobatic aircraft. SS2 crew may
also train in a g tolerance training
device, such as a centrifuge.
To the extent that physical human
vulnerability plays a role in safety,
Scaleds coverage of g tolerance, motion
sickness and unusual attitudes helps
safety on two fronts. First, it trains a
pilot to recognize the onset of,
experience, and recover from the
anticipated stresses of launch. Also, it
allows an operator to determine that a
pilot remains functional while
withstanding the anticipated stresses of
the launch.
(2) Incremental Approach to Flight
Testing
Another important factor in the FAAs
ability to grant this waiver is Scaleds
incremental approach to flight testing.
Scaleds test program is divided into
three phases: 1) Subsonic glide flights,
2) powered flight to maximum altitude,
and 3) repeatability demonstrations.
Scaled employs an incremental
approach to flight testing, and flight
tests in three different phases. Before
moving to a new phase, Scaled ensures
that it has mitigated or eliminated the
hazards it observed during the previous
phase. By changing only a limited
number of variables at a time, Scaled is
able to identify which variables result in
hazards, isolate those variables, and take
steps to mitigate or eliminate the
hazards. Scaled then runs additional
tests until it is satisfied that it has
eliminated or mitigated the hazard.
During phase one, WhiteKnightTwo
releases SS2 to allow Scaled to observe
its actions during glide flight. During
phase two, WhiteKnightTwo releases
SS2, and SS2 performs rocket-powered
flight. Phase two ends with a successful
demonstration of the maximum altitude
performance of the vehicle. Phase three
demonstrates that SS2 can repeatedly
perform proficiently during rocketpowered flight. For each new flight,
Scaled varies only one parameter at a
time, especially in the case of critical
components where a failure could
quickly take the aircraft from a safe
flight condition to a potentially
hazardous one. For example, Scaled
tests the feathering operation of the
vehicle during each phase. To do this,
Scaled feathers and defeathers the
vehicle in flight at varying Mach
numbers and altitudes. Test pilots will
evaluate the handling of the vehicle in
both the feathered and unfeathered
configuration at each Mach number and
altitude.
Incremental testing ensures that
Scaled is able to study the reactions of
the vehicle during different stages of
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17:20 Jul 17, 2013
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flight. By moving from a less complex

flight (glide) to a more complex flight
(rocket-powered), Scaled is able to
isolate and identify variables that cause
hazards, address those hazards, and retest to ensure that the mitigations were
effective.
(3) Use of Chase Planes and Two-Pilot
Model
Scaled uses two chase planes and two
pilots for SS2s flight. Scaleds use of
two chase planes and two pilots allows
Scaled to identify problems when the
system itself fails to disclose them, and
provides redundancy. The chase planes
are able to monitor the WhiteKnightTwo
and the SS2, so that if there is a
computer failure and the pilot would
not otherwise know of an external
failure, such as the failure of the landing
gear to lower, the chase planes are able
to provide that information. Upon
reentry of SS2, Scaled uses
WhiteKnightTwo as an additional chase
plane.
The pilots of chase planes look for
any external abnormalities in SS2. If an
abnormality is identified, the chase
plane is able to communicate the issue
to both the ground crew and the pilots
onboard SS2. If the communications
and telemetry systems stop functioning
in the carrier aircraft, the chase planes
can communicate with the carrier
aircraft by radio. The radio operates on
a separate frequency than the telemetry
system on the SS2 and
WhiteKnightTwo. Also, if the SS2
multifunctional displays and the
independent attitude/air data computer
and display become inoperable during
gliding flight, the chase planes can lead
the vehicle to landing if necessary.
The chase planes provide additional
situational awareness for pilots and
crew on the carrier aircraft and SS2, and
ground crew. The use of two chase
planes is a safety measure that
eliminates or mitigates potential
hazards. The chase planes are able to
identify anomalies and communicate
them directly to the SS2 or carrier
airplane pilots. They serve as an extra
set of eyes to ensure that any unplanned
events that do occur are identified and
addressed as quickly as possible.
Scaled uses two rather than one pilot
because if one pilot becomes
incapacitated, the other pilot can fly the
spacecraft. In both emergencies and
nominal flight operations, both pilots
are able to work together to enhance
situational awareness. For example,
each pilot is able to verify with the other
that the checklist is correct and the
spacecraft is functioning normally. Pilot
error on the part of one pilot can be
corrected by the other, and in situations
PO 00000
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Fmt 4703
Sfmt 4703
where a decision must be made, two

fully-qualified pilots can consult
quickly. The use of two pilots may
eliminate or mitigate potential hazards.
(4) Duration
Because an experimental permit is by
design a brief authorization of one year,
minimal levels of residual error and
thus risk may accumulate, but not at
levels that would jeopardize public
health and safety. Without a full system
safety analysis of software and human
error, error may accumulate over time.
For example, latent software and
hardware incompatibilities may develop
with changes and updates. Although
such error could build over time, it
would not within the time period of a
permit. Additionally, the one-year
duration of the permit means that this
waiver will also be of brief duration,
and there is a reduced likelihood of
employee turnover and any attendant
loss of corporate memory at Scaled in
that time.
(5) Remoteness of Operating Area and
Controllability of Vehicle
Finally, Scaleds operating area is
remote enough that, were it to
experience a catastrophic failure, it
would not jeopardize public health and
safety. Additionally, the SS2 is a winged
vehicle, and therefore maneuverable.
Scaled is conducting launches of SS2
in a very remote location. The southern
end of the operating area where Scaled
plans to conduct its test flights has a
population density of about 17 people
per square mile. The area Scaled plans
to use for the rocket-powered ascent
phase of flight includes approximately
450 people in a 140 square mile area, or
just over three people per square mile.
The operating area for SS2 is also very
large at approximately 5,000 square
miles, in order to ensure that SS2
operations are contained within a
sparsely populated area.
Additionally, SS2 is a winged vehicle.
Scaleds pilots are able to control and
maneuver SS2 to ensure it stays away
from populated areas, including the
exclusion zones inside the operating
area. The pilots can ensure that the SS2
operates only in the areas with the
sparsest population.
Scaled did not fully comply with the
hazard analysis required by section
437.55(a), but the FAA finds that
Scaleds operations will not jeopardize
property because of the combination of
its flight test program, training,
incremental flight testing, chase planes,
two pilots, and the remoteness of its
operating area.
E:\FR\FM\18JYN1.SGM
18JYN1
ii. National Security and Foreign Policy
Implications
This waiver does not have an impact
on any national security or foreign
policy interests of the United States.
Scaleds launch operations will take
place within the United States and
within a specifically defined area that is
used for military operations.
iii. Public Interest
The FAA finds that granting this
waiver is in the public interest. The
Commercial Space Launch Act provides
that the United States should encourage
private sector launches, reentries, and
associated services. Additionally,
Congress established Chapter 509 to
promote economic growth and
entrepreneurial activity through use of
the space environment for peaceful
purposes.
This waiver is consistent with the
public interest goals of Chapter 509. The
SS2 test flights will stimulate economic
growth, spur technological
developments and create aerospace
business opportunities such as carrying
scientific payloads and space tourists on
trips to the edge of space and back. The
FAA finds that granting this waiver is in
the public interest because the SS2
flights further the purposes Congress
articulated for Chapter 509.
Issued in Washington, DC on July 9, 2013.
George C. Nield,
Associate Administrator for Commercial
Space Transportation.
[FR Doc. 201317169 Filed 71713; 8:45 am]
Membership Availability in the National
Parks Overflights Advisory Group
Aviation Rulemaking Committee
ACTION:
Notice.
The National Park Service

(NPS) and the Federal Aviation
Administration (FAA), as required by
the National Parks Air Tour
Management Act of 2000, established
the National Parks Overflights Advisory
Group (NPOAG) in March 2001. The
NPOAG was formed to provide
continuing advice and counsel with
respect to commercial air tour
operations over and near national parks.
This notice informs the public of two
vacancies on the NPOAG [now the
NPOAG Aviation Rulemaking
Committee (ARC)] for members
representing commercial air tour
operators (one vacancy) and
SUMMARY:
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17:20 Jul 17, 2013
Jkt 229001
environmental concerns (one vacancy)

and invites interested persons to apply
to fill the vacancies.
DATES: Persons interested in serving on
the NPOAG ARC should contact Mr.
Keith Lusk in writing and postmarked
or emailed on or before August 16, 2013.
Keith Lusk, AWP1SP, Special
Programs Staff, Federal Aviation
Administration, Western-Pacific Region
Headquarters, P.O. Box 92007, Los
Angeles, CA 900092007, telephone:
(310) 7253808, email: Keith.Lusk@faa.
gov.
Background
The National Parks Air Tour
Management Act of 2000 (the Act) was
enacted on April 5, 2000, as Public Law
106181. The Act required the
establishment of the advisory group
within 1 year after its enactment. The
advisory group was established in
March 2001, and is comprised of a
balanced group of representatives of
general aviation, commercial air tour
operations, environmental concerns,
and Native American tribes. The
Administrator of the FAA and the
Director of NPS (or their designees)
serve as ex officio members of the
group. Representatives of the
Administrator and Director serve
alternating 1-year terms as chairman of
the advisory group.
The advisory group provides advice,
information, and recommendations to
the Administrator and the Director
(1) On the implementation of this title
[the Act] and the amendments made by
this title;
(2) On commonly accepted quiet
aircraft technology for use in
commercial air tour operations over a
national park or tribal lands, which will
receive preferential treatment in a given
air tour management plan;
(3) On other measures that might be
taken to accommodate the interests of
visitors to national parks; and
(4) At the request of the Administrator
and the Director, safety, environmental,
and other issues related to commercial
air tour operations over a national park
or tribal lands.
Members of the advisory group may
be allowed certain travel expenses as
authorized by section 5703 of Title 5,
United States Code, for intermittent
Government service.
By FAA Order No. 1110138, signed
by the FAA Administrator on October
10, 2003, the NPOAG became an
Aviation Rulemaking Committee (ARC).
FAA Order No. 1110138, was amended
and became effective as FAA Order No.
1110138A, on January 20, 2006.
PO 00000
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42997
The current NPOAG ARC is made up

of one member representing general
aviation, three members representing
the commercial air tour industry, four
members representing environmental
concerns, and two members
representing Native American tribal
concerns. Current members of the
NPOAG ARC are: Heidi Williams
representing general aviation; Alan
Stephen, and Mark Francis representing
commercial air tour concerns; Michael
Sutton, Gregory Miller, and Dick
Hingson representing environmental
interests; Rory Majenty and Martin
Begaye, representing Native American
tribes.
In order to retain balance within the
NPOAG ARC, the FAA and NPS invite
persons interested in serving on the
ARC to represent commercial air tour
operators and environmental concerns
to contact Mr. Keith Lusk (contact
information is written above in FOR
FURTHER INFORMATION CONTACT).
Requests to serve on the ARC must be
made to Mr. Lusk in writing and
postmarked or emailed on or before
August 16, 2013. The request should
indicate whether or not you are a
member of an association or group
representing commercial air tours or
environmental concerns, or have
another affiliation with issues relating to
aircraft flights over national parks. The
request should also state what expertise
you would bring to the NPOAG ARC as
related to the vacancy you are seeking
to fill (e.g., environmental concerns).
The term of service for NPOAG ARC
members is 3 years.
On June 18, 2010, President Obama
signed a Presidential Memorandum
directing agencies in the Executive
Branch not to appoint or re-appoint
federally registered lobbyists to advisory
committees and other boards and
commissions. Therefore, before
appointing an applicant to serve on the
NPOAG, the FAA and NPS will require
the prospective candidate to certify that
they are not a federally registered
lobbyist.
Issued in Hawthorne, CA, on July 11, 2013.
Keith Lusk,
Program Manager, Special Programs Staff,
Western-Pacific Region.
[FR Doc. 201317254 Filed 71713; 8:45 am]
BILLING CODE P
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Aeronautical Fixed Radio Station
Licensees.
1.994
[Corrected]
3. On page 41330, in the third column,

in 1.994(d), under the heading
Example (for rulings issued under
1.990(a)(2)), correct the second
sentence by removing the open
parenthesis at the beginning of the
sentence, to read as follows: A U.S.
citizen holds the remaining 52 percent
equity and voting interests in U.S.
Corporation A, and the remaining 51
percent equity and voting interests in
Licensee are held by its U.S.-organized
parent, which has no foreign ownership.

Marlene H. Dortch,
Secretary.
[FR Doc. 201317711 Filed 72213; 8:45 am]
COMMISSION
47 CFR Part 25
Establishment of Rules and Policies

for the Digital Audio Radio Satellite
Service in the 23102360 MHz
Frequency Band
Commission.
ACTION: Final rule; announcement of
effective date.
AGENCY:
In this document, the

Commission announces that the Office
of Management and Budget (OMB) has
approved, for a period of three years, the
revised information collections for
(SDARS) terrestrial repeaters adopted in
an Order on Reconsideration of the
Commissions rules to Govern the
Operation of Wireless Communications
Services in the 2.3 GHz Band;
Establishment of Rules and Policies for
the Digital Audio Radio Satellite Service
in the 23102360 MHz Frequency
Band, WT Docket No. 07293, IB
Docket No. 9591 (FCC 12130). This
notice is consistent with the Order on
Reconsideration, which stated that the
Commission would publish a document
in the Federal Register announcing the
effective date of those rules.
DATES: The amendments to 47 CFR
25.263(b) and 25.263(c) published at 78
FR 9605, February 11, 2013, are
effective July 23, 2013.
Stephen Duall, Satellite Division,
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SUMMARY:
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International Bureau, at (202) 4181103,

or email: stephen.duall@fcc.gov.
SUPPLEMENTARY INFORMATION: This
document announces that, on June 27,
2013, OMB approved, for a period of
three years, the revised information
collection requirements relating to the
access stimulation rules contained in
the Commissions Order on
Reconsideration, FCC 12130,
published at 78 FR 9605, February 11,
2013. The OMB Control Number is
30601153. The Commission publishes
this notice as an announcement of the
effective date of the rules. If you have
any comments on the burden estimates
listed below, or how the Commission
can improve the collections and reduce
any burdens caused thereby, please
contact Cathy Williams, Federal
Communications Commission, Room
1C823, 445 12th Street SW.,
Washington, DC 20554. Please include
the OMB Control Number, 30601153,
in your correspondence. The
Commission will also accept your
comments via email at PRA@fcc.gov.
To request materials in accessible
formats for people with disabilities
(Braille, large print, electronic files,
audio format), send an email to
fcc504@fcc.gov or call the Consumer
and Governmental Affairs Bureau at
(202) 4180530 (voice), (202) 4180432
(TTY).
Synopsis
As required by the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507),
the FCC is notifying the public that it
received final OMB approval on June
27, 2013, for the information collection
requirements contained in the
modifications to the Commissions rules
in 47 CFR part 25.
Under 5 CFR 1320, an agency may not
conduct or sponsor a collection of
information unless it displays a current,
valid OMB Control Number.
No person shall be subject to any
penalty for failing to comply with a
collection of information subject to the
Paperwork Reduction Act that does not
display a current, valid OMB Control
Number. The OMB Control Number is
30601153.
The foregoing notice is required by
the Paperwork Reduction Act of 1995,
Public Law 10413, October 1, 1995,
and 44 U.S.C. 3507.
The total annual reporting burdens
and costs for the respondents are as
follows:
OMB Control Number: 30601153.
OMB Approval Date: June 27, 2013.
OMB Expiration Date: June 30, 2016.
Title: Satellite Digital Radio Service
(SDARS).
Form Number: N/A.
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44029
Respondents: Business or other forprofit entities.

Number of Respondents and
Responses: 1 respondent; 54 responses.
Estimated Time per Response: 312
hours.
Frequency of Response: Annual and
on-occasion reporting requirements;
Recordkeeping requirement; Third party
disclosure requirement.
Obligation to Respond: Required to
obtain or retain benefits. The statutory
authority for this information collection
is contained in sections 4, 301, 302, 303,
307, 309, and 332 of the
amended, 47 U.S.C. 154, 301, 302a, 303,
307, 309, and 332.
Total Annual Burden: 308 hours.
Total Annual Cost: $97,710.
Nature and Extent of Confidentiality:
An assurance of confidentiality is not
offered because the information
collection does not affect individuals or
households; thus, there are no impacts
under the Privacy Act.
Privacy Act: No impact(s).
Needs and Uses: The Federal
Communications Commission
(Commission) received approval from
the Office of Management and Budget
(OMB) to revise OMB Control No. 3060
1153 to reflect new and/or modified
information collections as a result of an
Order on Reconsideration titled In the
Matter of Amendment of part 27 of the
Commissions rules to Govern the
Operation of Wireless Communications
Services in the 2.3 GHz Band;
Establishment of Rules and Policies for
the Digital Audio Radio Satellite Service
in the 23102360 MHz Frequency
Band, WT Docket No. 07293, IB
Docket No. 9591 (FCC 12130).
On October 17, 2012, the Commission
adopted and released an Order on
Reconsideration that addressed five
petitions for reconsideration of the 2010
WCS R&O and SDARS 2nd R&O. The
petitions sought reconsideration or
clarification of the Commissions
decisions in the 2010 WCS R&O and
SDARS 2nd R&O regarding the technical
and policy rules governing the operation
of WCS stations in the 23052320 MHz
and 23452360 MHz bands and the
operation of SDARS terrestrial repeaters
in the 23202345 MHz band.
As part of the Order on
Reconsideration, the Commission
adopted proposals to relax the
notification requirements for SDARS
licensees under 25.263(b) & (c) of the
Commissions rules. As adopted in the
2010 WCS R&O and SDARS 2nd R&O,
25.263(b) requires SDARS licensees to
share with WCS licensees certain
technical information at least 10
business days before operating a new
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repeater, and at least 5 business days

before operating a modified repeater.
Under 25.263(c), SDARS licensees
operating terrestrial repeaters must
maintain an accurate and up-to-date
inventory of all terrestrial repeaters,
25.263(c)(2) for each repeater, which
must be made available to the
Commission upon request.
The following modified information
collections are contained in the Order
on Reconsideration and received OMB
approval:
47 CFR 25.263(b)SDARS licensees
are required to provide informational
notifications as specified in 25.263,
including a requirement that SDARS
licensees must share with WCS
licensees certain technical information
at least 10 business days before
operating a new repeater, and at least 5
business days before operating a
modified repeater; exempting
modifications that do not increase the
predicted power flux density at ground
level by more than one decibel (dB)
(cumulative) and exempting terrestrial
repeaters operating below 2 watts
equivalent isotropically radiated power.
47 CFR 25.263(c)SDARS licensees
operating terrestrial repeaters must
maintain an accurate and up-to-date
inventory of terrestrial repeaters
operating above 2 W EIRP, including the
information set forth in 25.263(c)(2)
for each repeater, which shall be made
available to the Commission upon
request. Requirement can be satisfied by
maintaining inventory on a secure Web
site that can be accessed by authorized
Commission staff.
The information collection
requirements contained in 25.263 are
necessary to determine the potential of
radiofrequency interference from
SDARS terrestrial repeaters to WCS
stations. Without such information, the
Commission would be unable to fulfill
its statutory responsibilities in
accordance with the Communications
Act of 1934, as amended.
The information collection
requirements contained in 25.263 are
necessary to determine the potential of
radiofrequency interference from
SDARS terrestrial repeaters to Wireless
Communications Service (WCS) stations
in adjacent frequency bands. Without
such information, the Commission
would be unable to fulfill its statutory
responsibilities in accordance with the
amended.
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Marlene H. Dortch,
Secretary, Office of the Secretary, Office of
Managing Director.
[FR Doc. 201317647 Filed 72213; 8:45 am]
Administration
49 CFR Part 541
[Docket No. NHTSA20130027]
RIN 2127AL42
Federal Motor Vehicle Theft Prevention

Standard; Final Listing of 2014 Light
Duty Truck Lines Subject to the
Requirements of This Standard and
Exempted Vehicle Lines for Model Year
2014
National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation.
ACTION: Final rule.
AGENCY:
This final rule announces

NHTSAs determination that there are
no new model year (MY) 2014 light duty
truck lines subject to the parts-marking
requirements of the Federal motor
vehicle theft prevention standard
because they have been determined by
the agency to be high-theft or because
they have a majority of interchangeable
parts with those of a passenger motor
vehicle line. This final rule also
identifies those vehicle lines that have
been granted an exemption from the
parts-marking requirements because the
vehicles are equipped with antitheft
devices determined to meet certain
statutory criteria.
DATES: The amendment made by this
final rule is effective July 23, 2013.
FOR FURTHER INFORMATION CONTACT: Ms.
Rosalind Proctor, Consumer Standards
Division, Office of International Policy,
Fuel Economy and Consumer Programs,
NHTSA, West Building, 1200 New
Jersey Avenue SE., (NVS131, Room
W43302) Washington, DC 20590. Ms.
Proctors telephone number is (202)
3664807. Her fax number is (202) 493
0073.
SUPPLEMENTARY INFORMATION: The theft
prevention standard applies to (1) all
passenger car lines; (2) all multipurpose
passenger vehicle (MPV) lines with a
gross vehicle weight rating (GVWR) of
6,000 pounds or less; (3) low-theft lightduty truck (LDT) lines with a GVWR of
6,000 pounds or less that have major
parts that are interchangeable with a
SUMMARY:
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Fmt 4700
Sfmt 4700
majority of the covered major parts of

passenger car or MPV lines; and (4)
high-theft light-duty truck lines with a
GVWR of 6,000 pounds or less.
The purpose of the theft prevention
standard (49 CFR Part 541) is to reduce
the incidence of motor vehicle theft by
facilitating the tracing and recovery of
parts from stolen vehicles. The standard
seeks to facilitate such tracing by
requiring that vehicle identification
numbers (VINs), VIN derivative
numbers, or other symbols be placed on
major component vehicle parts. The
theft prevention standard requires motor
vehicle manufacturers to inscribe or
affix VINs onto covered original
equipment major component parts, and
to inscribe or affix a symbol identifying
the manufacturer and a common symbol
identifying the replacement component
parts for those original equipment parts,
on all vehicle lines subject to the
requirements of the standard.
Section 33104(d) provides that once a
line has become subject to the theft
prevention standard, the line remains
subject to the requirements of the
standard unless it is exempted under
33106. Section 33106 provides that a
manufacturer may petition annually to
have one vehicle line exempted from
the requirements of 33104, if the line
is equipped with an antitheft device
meeting certain conditions as standard
equipment. The exemption is granted if
NHTSA determines that the antitheft
device is likely to be as effective as
compliance with the theft prevention
standard in reducing and deterring
motor vehicle thefts.
The agency annually publishes the
names of those LDT lines that have been
determined to be high theft pursuant to
49 CFR Part 541, those LDT lines that
have been determined to have major
parts that are interchangeable with a
majority of the covered major parts of
passenger car or MPV lines and those
vehicle lines that are exempted from the
theft prevention standard under section
33104. Appendix A to Part 541
identifies those LDT lines that are or
will be subject to the theft prevention
standard beginning in a given model
year. Appendix AI to Part 541
identifies those vehicle lines that are or
have been exempted from the theft
prevention standard.
For MY 2014, there are no new LDT
lines that will be subject to the theft
prevention standard in accordance with
the procedures published in 49 CFR Part
542. Therefore, Appendix A does not
need to be amended.
For MY 2014, the list of lines that
have been exempted by the agency from
the parts-marking requirements of Part
541 is amended to include thirteen
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July 23, 2013
Part XVIII
National Aeronautics and Space Administration
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Federal Register / Vol. 78, No. 141 / Tuesday, July 23, 2013 / Unified Agenda

14 CFR Ch. V
Regulatory Agenda
Space Administration (NASA).
ACTION: Semiannual regulatory agenda.
AGENCY:
NASAs regulatory agenda

describes those regulations being
considered for development or
amendment by NASA, the need and
SUMMARY:
legal basis for the actions being

considered, the name and telephone
number of the knowledgeable official,
whether a regulatory analysis is
required, and the status of regulations
previously reported.
ADDRESSES: Acting Assistant
Administrator for Office of Internal
Controls and Management Systems,
Office of Mission Support Directorate,
NASA Headquarters, Washington, DC
20546.
Cheryl E. Parker, (202) 3580252.
OMB
guidelines dated March 28, 2012,
Spring 2013 Unified Agenda of Federal
Regulatory and Deregulatory Actions,
require a regulatory agenda of those
regulations under development and
review to be published in the Federal
Register each spring and fall.
Dated: April 24, 2013.

Nancy Anne Baugher,
Director for Office of Internal Controls and
Management Systems.
NATIONAL AERONAUTICS AND SPACE ADMINISTRATIONPROPOSED RULE STAGE

Title
246 ....................
Nondiscrimination on Basis of Handicap (Section 610 Review) ....................................................................

SPACE ADMINISTRATION (NASA)
Proposed Rule Stage
246. Nondiscrimination on Basis of
Handicap (Section 610 Review)
Legal Authority: 29 U.S.C. 794, sec
504 of the Rehabilitation Act of 1973,
amended
Abstract: This proposed rule amends
14 CFR 1251 to align with the
Department of Justices (DOJ)
implementing regulations incorporating
the new accessibility standards. Other
amendments include updates to
organizational information, use of the
term disability in lieu of the term
handicap, changes to definitions, and
other sections based on the Americans
with Disabilities Act of 2008.
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Identifier No.
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Part 1251 implements the federally

assisted provisions of section 504 of the
Rehabilitation Act of 1973 (section 504),
as amended, 29 U.S.C. section 794,
which prohibits discrimination on the
basis of disability by recipients of
Federal Financial Assistance from
NASA. Under Executive Order 12250,
the United States Attorney General has
the authority to coordinate the
implementation and enforcement of a
variety of civil rights statutes by Federal
agencies such as NASA, including
section 504.
The revisions to this rule are part of
NASAs retrospective plan under
Executive Order 13563 completed in
August 2011. NASAs full plan can be
accessed at: http://www.nasa.gov/open.
Timetable:
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Action
Date
NPRM ..................
2700AD85
FR Cite
10/00/13
Regulatory Flexibility Analysis

Required: No.
Agency Contact: Robert W. Cosgrove,
External Compliance Manager, National
Aeronautics and Space Administration,
300 E Street SW., Washington, DC
20546, Phone: 202 3580446, Fax: 202
3583336, Email: robert.cosgrove@nasa.
gov.
RIN: 2700AD85
[FR Doc. 201317072 Filed 72213; 8:45 am]
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Nat iona l Space

t r a nsp or tat ion p ol ic y
N OV E M B E R 2 1 , 2 0 1 3
Table of Contents
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III. Sector Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
IV. Cross-Sector Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
I. Introduction
Space activities are critical to the Nations technological advancement, scientific discovery, security,
and economic growth. As outlined in the National Space Policy, the utilization of space has transformed
every aspect of society, and the United States remains committed to maintaining its role as the leading
space-faring nation. Space transportation capabilities play a vital role in enabling these space activities
by providing the United States with access to diverse regions of space.
The U.S. space transportation sector is undergoing a period of change as new actors and capabilities
emerge and nontraditional public-private partnerships are established. At the same time, the sector
faces challenges to include increased proliferation concerns and international competition. To assure
continued leadership in this arena, it is essential that the United States foster more efficient and capable
space transportation systems and approaches that can address such challenges and enable new activities and discoveries in and from space.
Maintaining an assured capability to meet UnitedStates Government needs, while also taking the
necessary steps to strengthen U.S. competitiveness in the international commercial launch market,
is important to ensuring that U.S. space transportation capabilities will be reliable, robust, safe, and
affordable in the future. Among other steps, improving the cost effectiveness of U.S. space transportation services could help achieve this goal by allowing the UnitedStates Government to invest a greater
share of its resources in other needs such as facilities modernization, technology advancement, scientific
discovery, and national security. Further, a healthier, more competitive U.S. space transportation industry
would facilitate new markets, encourage new industries, create high technology jobs, lead to greater
economic growth and security, and would further the Nations leadership role in space.
II. Goals
The overarching goal of this policy is for the United States to have assured access to diverse regions of
space, from suborbital to Earths orbit and deep space, in support of civil and national security missions.
For the purpose of this policy, assured access is defined as sufficiently robust, responsive, and resilient
space transportation capabilities that are available to enable and advance civil and national security
missions. The capacity to provide such access resides partly within the United States Government and,
increasingly, within the U.S. private sector, which offers space transportation services and capabilities
for the United States Government and commercial applications.
In support of this goal, the United States shall seek to foster and ensure the availability of domestic
space transportation capabilities that are reliable, efficient, affordable, innovative, and competitive. In
particular, United States Government departments and agencies, within their authorized capacity, shall:
Promote and maintain a dynamic, healthy, and efficient domestic space transportation industrial
base;
Encourage and facilitate the U.S. commercial space transportation industry to increase industry
robustness and cost effectiveness, foster innovation-driven entrepreneurship and international
competitiveness, and benefit the U.S. economy;
Conduct and promote technology research and development activities to improve the affordability, reliability, performance, safety, and responsiveness of U.S. space transportation capabilities, while increasing collaboration and coordination among departments and agencies;
Enable the capabilities to support human space transportation activities to and beyond low
Earth orbit, including services to and from the International Space Station and the development
of a deep-space-capable transportation system; and
Foster the development of U.S. commercial spaceflight capabilities serving the emerging nongovernmental human spaceflight market.
All actions undertaken by departments and agencies in implementing this Directive shall be within the
overall resource and policy guidance provided by the President; subject to the availability of appropriations; consistent with U.S. law and regulations, treaties, and other international agreements to which
the United States is party, other applicable international law, U.S. national security requirements, U.S.
foreign policy, and National Space Policy; and in accordance with the Presidential Memorandum on
Transparency and Open Government.
III. Sector Guidelines

Civil and National Security Space Guidelines
The Administrator of the National Aeronautics and Space Administration (NASA) and the Secretary of
Defense, as the launch agents for civil and national security space missions, respectively, shall:
Assure access to space for United States Government departments and agencies, taking into
account risk management, affordability, competition among providers, and measures for
enhancing transparency regarding United States Government space transportation needs;
Rely upon U.S.-manufactured space transportation vehicles as the foundation for access to
space;
Acquire space transportation capabilities and services, and ensure the ability to develop,
operate, and enhance space transportation-related capabilities, infrastructure, and support
activities; and
Work with each other and other departments and agencies, and with the private sector, as
appropriate, to pursue research and technology development activities regarding alternative
launch capabilities to improve responsiveness, resiliency, and cost effectiveness for future space
launch alternatives.
In support of civil space programs and activities, including human and robotic spaceflight for exploration, scientific, operational, and other civil purposes, the Administrator of NASA shall:
Develop, in support of U.S. space exploration goals, the transportation-related capabilities

necessary to support human and robotic exploration to multiple destinations beyond low-Earth
orbit, including an asteroid and Mars. Such capabilities include a heavy-lift space transportation
system, crew vehicles, and other related capabilities such as in-space refueling technologies and
more efficient, advanced in-space transportation systems. These development efforts shall seek
to identify and implement measures to enhance the long-term affordability and sustainability
of this exploration initiative; and
Implement partnerships with the private sector to develop safe, reliable, and cost effective commercial spaceflight capabilities for the transport of crew and cargo to and from the International
Space Station and low-Earth orbit, consistent with safety and mission requirements and taking
into account practical means to address technical and programmatic risk.
In support of national security space programs and activities, the Secretary of Defense shall:
Ensure, to the maximum extent practicable, the availability of at least two U.S. space transportation vehicle families capable of reliably launching national security payloads; and
Develop, in cooperation with other departments and agencies as appropriate, launch concepts,
techniques, and technologies needed for augmentation or rapid restoration of national security
space capabilities during a time of crisis, conflict, or in the event of a launch system failure.
N at i o n a l S pac e T r a ns p o rtat i o n P o li c y
Departments and agencies shall explore the use of hosted payload arrangements, secondary payload launches, and other ride-sharing opportunities when planning space-based missions to meet
UnitedStates Government requirements.
U.S. commercial space transportation capabilities that demonstrate the ability to launch payloads reliably
will be allowed to compete for UnitedStates Government missions on a level playing field, consistent
with established interagency new entrant certification criteria. Any changes to these new entrant criteria
shall be coordinated with the Assistant to the President and National Security Advisor and Assistant to
the President for Science and Technology and Director of the Office of Science and Technology Policy
before they may take effect.
Commercial Space Guidelines

The UnitedStates Government remains committed to encouraging and facilitating a viable, healthy, and
competitive U.S. commercial space transportation industry. Within authorized capacities, departments
and agencies shall:
Purchase and use U.S. commercial space transportation capabilities and services and facilitate
multiple U.S. commercial providers of space transportation services across a range of launch
vehicle classes, to the maximum extent practicable;
Modify, through mutually acceptable arrangements, U.S. commercial space transportation capabilities and services to meet United States Government requirements when existing capabilities
and services do not fully meet these requirements and the potential modification represents a
more cost-effective and timely acquisition approach for the UnitedStates Government;
Refrain from conducting United States Government space transportation activities that preclude, discourage, or compete with U.S. commercial space transportation activities, unless
required by national security or public safety;
Ensure availability of United States Government space transportation technologies, capabilities,

and facilities for non-federal use on a reimbursable, noninterference, equitable, and predictable
basis to the maximum practical extent, consistent with applicable law and national security;
Cultivate increased technological innovation and entrepreneurship in the U.S. commercial

space transportation sector through the use of incentives such as nontraditional acquisition
arrangements, competition, and prizes;
Encourage the purchase and use of U.S. commercial space transportation services and capabilities in international trade and cooperative government activities;
Provide for the private sector retention of technical data rights in acquiring space transportation
capabilities, limited only to the extent necessary to meet United States Government needs;
Facilitate U.S. commercial industry access to available public data and lessons learned related
to human spaceflight; and
Pursue policy, regulatory, and other measures to foster the development of U.S. commercial
spaceflight capabilities serving the emerging nongovernmental human spaceflight market.
Such measures should take into account public safety, policy and international commitments,
industry and technological advancements, and commercial orbital and suborbital space transportation capabilities and activities. These measures should leverage the nongovernmental
human spaceflight market to support United States Government requirements for scientific
research, technology demonstrations, and risk reduction.
The Secretaries of Commerce and Transportation shall encourage, facilitate, and promote U.S. commercial space transportation activities, including nongovernmental human spaceflight.
The Secretary of Transportation is responsible for authorizing and providing safety oversight for nonfederal launch and reentry operations and for the operation of non-federal launch and reentry sites. In
performing these responsibilities, the Secretary of Transportation shall:
Coordinate with the Secretary of Defense, the Administrator of NASA, and other appropriate
heads of departments and agencies. Such coordination shall include work to establish and/
or refine common public safety requirements and other common standards, as applicable, for
launches from or reentries to Federal, state, and commercial sites;
Develop, in coordination with the Administrator of NASA, a comprehensive, efficient approach

to the regulatory oversight of commercial spaceflight capabilities transporting UnitedStates
Government and UnitedStates Government-sponsored crews safely to and from orbitthese
coordination efforts shall strive to avoid unnecessary overlap or undue burden; and
Execute exclusive authority, consistent with existing statutes and executive orders, to address
orbital debris mitigation practices for U.S.-licensed commercial launches, to include launch
vehicle components such as upper stages, through its licensing procedures.
In addition, the Secretary of Transportation and other appropriate department and agency heads, shall:
Seek to ensure that the regulatory environment for licensing commercial space transportation
activities is timely and responsive, and addresses current market and industry developments;
Support continuation of the current liability risk-sharing regime for U.S. commercial space
transportation activities, including provisions for the conditional payment of excess third-party
claims by the United States Government; and
Advocate internationally for the adoption of UnitedStates Government safety regulations,

standards, and licensing measures to enhance global interoperability and safety of international
commercial space transportation activities.
IV. Cross-Sector Guidelines

Space Launch Ranges
The Secretary of Defense and the Administrator of NASA shall operate the Federal launch bases and
ranges in a manner that accommodates users from all sectors. Departments and agencies, consistent
with their responsibilities and in consultation with private sector and state entities as appropriate, shall:
Enhance the operational efficiency, capacity, responsiveness, and cost effectiveness of Federal
space launch infrastructure, including investing in the modernization of current infrastructure
to meet evolving space transportation needs and capabilities, and seeking to improve current
launch range scheduling procedures and practices;
Encourage private sector and state and local government investment and participation in the
development, improvement, and sustainment of space infrastructure, including both Federal
launch and reentry sites, as well as those operated and maintained by private, state, and local
entities; and
Provide stable and predictable access to UnitedStates Government space launch bases and
ranges, and other related government facilities and services, for commercial launch and reentry
purposes on a direct-cost basis or other agreed partnership. The UnitedStates Government will
reserve the right to use such facilities and services on a priority basis to meet national security
and critical civil mission requirements.
Space Transportation Technology Development

Departments and agencies, consistent with their responsibilities, and working collaboratively with U.S.
non-federal entities as appropriate, shall:
Support research and development activities aimed at improving the reliability, responsiveness,
performance, and cost effectiveness of current and future U.S. space transportation systems,
which may address enhancements at either the component or integrated system level, to
include next-generation space launch propulsion systems for first- and upper-stage applications,
reusable space transportation capabilities, and solar electric propulsion;
Conduct and promote research and development of advanced, nontraditional, in-space transportation capabilities, including propulsion that could expand the reach, increase the flexibility,
reduce mission transit times, and lower the cost of future space missions;
Establish mechanisms or other measures to increase collaboration and coordination among

departments and agencies involved in space transportation-related research and development;
Cooperate with the Secretary of Energy, and other department and agency heads as appropriate, in pursuing potential research and development activities regarding space nuclear power
or nuclear propulsion technologies; and
Consider international cooperation in space transportation technology research and development efforts, consistent with U.S. laws, international obligations and commitments, and foreign
policy and national security interests.
U.S. Space Transportation Industrial Base

To promote a healthy and efficient UnitedStates Government and private sector space transportation
industrial base, departments and agencies shall:
Make space transportation policy and programmatic decisions in a manner that considers the
health of the U.S. space transportation industrial base; and
Pursue measures such as public-private partnerships and other innovative acquisition

approaches that promote affordability, industry planning, and competitive capabilities, infrastructure, and workforce.
Nonproliferation and Excess Intercontinental Ballistic Missile Assets

To prevent the proliferation of missile technology and limit the adverse impact of use of excess ballistic
missiles on U.S. space transportation capabilities:
Excess U.S. ballistic missiles shall either be retained for government use or destroyed.
Departments and agencies may use such assets to launch payloads into orbit on a case-bycase basis, consistent with applicable law, national security objectives, and the approval of
the Secretary of Defense, when the following conditions are met: (1) the payload supports the
sponsoring agencys mission; (2) such use is consistent with the obligations and commitments
of the UnitedStates under treaties, international agreements, or arrangements in which the
United States is a party or participant, including the Missile Technology Control Regime (MTCR)
guidelines, the New Strategic Arms Reduction Treaty, and the Intermediate Nuclear Forces
Treaty; and (3) the sponsoring agency certifies that such use is cost effective for the UnitedStates
Government compared to the use of available U.S. commercial space transportation services
that would also meet mission requirements, including performance, schedule, and risk, and
limits the impact on the U.S. space transportation industry;
The UnitedStates Government encourages other nations that possess excess ballistic missiles to
limit their use to government purposes only or to destroy them. The UnitedStates Government
will consider on a case-by-case basis requests from U.S. companies to use foreign excess ballistic missiles for space transportation purposes. Any such use must be in conformity with arms
control agreements, U.S. nonproliferation policies, U.S. technology transfer policies, and the
MTCR guidelines; and
The United States will maintain its general policy of not supporting the development or acquisition of space transportation systems in non-MTCR countries. Consistent with UnitedStates
Government nonproliferation policies, the UnitedStates will also not encourage new MTCRcountry space transportation programs. The UnitedStates will work to stem the flow of advanced
space technology or expertise to unauthorized parties. Departments and agencies are responsible for protecting against adverse technology transfer in the conduct of their programs.
International Collaboration
International collaboration in mutually beneficial space transportation-related activities is an important
element of UnitedStates Government programs and plans. Such collaboration must be consistent with
U.S. law and regulations, national security and foreign policy interests, treaty obligations and international commitments, and nonproliferation and export control policies.
UnitedStates Government payloads shall be launched on vehicles manufactured in the United States
unless an exemption is coordinated by the Assistant to the President and National Security Advisor
and the Assistant to the President for Science and Technology and Director of the Office of Science
and Technology Policy through an interagency process. Consistent with interagency standards and
coordination guidelines, such an exemption is not required for UnitedStates Government use of foreign
launch vehicles to support:
No-exchange-of-funds agreements involving international scientific programs, launches of

scientific instruments on foreign spacecraft or other cooperative government-to-government
agreements;
Launches of secondary technology demonstrator or scientific payloads for which no U.S. launch
service is available. A secondary payload is an independent, typically smaller spacecraft relative
to the primary spacecraft, but is dependent on the primary spacecrafts launch vehicle, schedule,
and other launch parameters to achieve orbit; or
Hosted payload arrangements on spacecraft not owned by the UnitedStates Government. A

hosted payload is a sensor or instrument that is integrated to a host spacecraft and dependent
upon one or more of the host spacecrafts subsystems for functionality.
The UnitedStates Government shall consider, on a case-by-case basis, requests to launch foreign space
launch vehicles in the United States for commercial purposes, including exhibitions and demonstrations.
The use of foreign components or technologies and the participation of foreign governments and entities, in current and future U.S. space transportation capabilities, are permitted on a case-by-case basis.
The sponsoring department or agency shall assess mission impact of factors such as potential delays or
disruptions in receipt of foreign-produced systems, components, technology, or expertise.
N at ion a l Space t r a nsp or tat ion p ol ic y
6/9/2014
Federal Register, Volume 78 Issue 231 (Monday, December 2, 2013)
[Federal Register Volume 78, Number 231 (Monday, December 2, 2013)]

[Rules and Regulations]
[Pages 72011-72013]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-28405]
----------------------------------------------------------------------DEPARTMENT OF TRANSPORTATION
14 CFR Part 460
Interpretation Concerning Involvement of NASA Astronauts During a

Licensed Launch or Reentry
AGENCY: Federal Aviation Administration, DOT.
ACTION: Interpretation.
----------------------------------------------------------------------SUMMARY: This interpretation responds to a request from the National
Aeronautics and Space Administration (NASA) regarding whether the space
transportation regulations of the Federal Aviation Administration (FAA)
would restrict NASA astronauts from performing operational functions
during a commercial space launch or reentry under license from the FAA.
DATES: Effective December 2, 2013.
FOR FURTHER INFORMATION CONTACT: For technical questions, contact Pam
Underwood, Deputy Manager, Operations Integration Division;
pam.underwood@faa.gov. For legal questions, contact Alex Zektser,
Office of the Chief Counsel, International Law, Legislation, and
Regulations Division, Federal Aviation Administration; email
alex.zektser@faa.gov.
[[Page 72012]]
Background
On July 3, 2013, NASA asked the FAA whether the FAA would restrict
NASA astronauts, who are U.S. Government employees, from engaging in
operational functions during an FAA-licensed launch or reentry. NASA
noted that all NASA astronauts undergo extensive training and must meet
rigorous medical and training requirements. NASA will also ensure
astronauts complete training specific to each launch and reentry
operator's vehicle and operations.
Specifically, NASA asked whether, under the FAA's statute and
regulations, a NASA astronaut flying as a space flight participant
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could engage in `àll nominal and off-nominal operational functions,''

including ``the conduct of aborts, emergency response, and monitoring
and operating environmental controls and life support systems.'' NASA
also asked the FAA whether NASA's astronauts could ``perform
operational activities up to and including flight.'' In response to
NASA's question, the FAA examined the launch and reentry scenarios
currently envisioned, and concludes that NASA astronauts may perform
these functions in FAA-licensed launches and reentries.
Scenarios
The FAA understands that the following scenarios are likely, but
not definite. It is the FAA's understanding that a NASA astronaut's
interaction with the controls of a launch or reentry vehicle may vary
depending on a launch or reentry operator's designs and operational
procedures, which are currently under development. During a nominal
launch, a launch operator under an FAA license would most likely
conduct the ascent using a flight computer as the primary means of
controlling the flight path of the vehicle. Any persons on board would
not likely affect the flight path of the launch vehicle. If an
emergency situation arose, a NASA astronaut could override the launch
operator's flight computer to initiate an abort from the launch vehicle
and take manual control of the spacecraft atop the launch vehicle. NASA
astronaut emergency operations could include manually initiating an
abort, using thrusters to orient a capsule to support chute deployment,
and subsequent deployment of any parachutes. Emergency operations could
also include the NASA astronaut manually piloting a vehicle to a water
or runway landing.
For a reentry, a licensed operator's flight computer could serve as
the primary means of controlling the flight path of the vehicle during
a nominal reentry. A NASA astronaut might manually initiate the reentry
burn, and the flight computer could conduct the reentry of the vehicle
during nominal operations. The NASA astronaut could also have the
capability to take manual control over the reentry vehicle in an offnominal or emergency situation. During an off-nominal or emergency
situation, the NASA astronaut would, much of the time, be using
procedures or training prepared by the reentry operator.
Discussion
A. Space Flight Participants Who are NASA Astronauts
Based on the above scenarios, we conclude that, under 51 U.S.C. ch.
509 (Chapter 509), the FAA's space regulations at 14 CFR ch. III, and
consistent with the FAA's discussion of its human space flight
requirements,\1\ a NASA astronaut may engage in operational functions,
up to and including piloting the vehicle, the conduct of aborts,
emergency response, and monitoring and operating environmental controls
and life support systems, and the launch or reentry would remain under
FAA jurisdiction.
--------------------------------------------------------------------------\1\ Human Space Flight Requirements for Crew and Space Flight
Participants, Final Rule, 71 FR 75616 (Dec. 15, 2006) (``Human Space
Flight Rule'').
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Chapter 509 addresses crew and space flight participants, and,

according to Chapter 509's definition, NASA astronauts are space flight
participants. Chapter 509 defines ``crew'' as `àny employee of a
licensee or transferee, or of a contractor or subcontractor of a
licensee or transferee, who performs activities in the course of that
employment directly relating to the launch, reentry, or other operation
of or in a launch vehicle or reentry vehicle that carries human
beings.'' 51 U.S.C. 50902(2). Conversely, a ``space flight
participant'' is `àn individual, who is not crew, carried within a
launch vehicle or reentry vehicle.'' Id. Sec. 50902(17). Because a
NASA astronaut is not an employee of a licensee or transferee, or of a
contractor or subcontractor of a licensee or transferee, a NASA
astronaut is not crew. Consequently, a NASA astronaut who is being
carried within a launch or reentry vehicle is a space flight
participant.
B. Limitations
Chapter 509 does not specify any limitations on a space flight
participant's conduct or operations during a launch or reentry.
Similarly, FAA regulations implementing Chapter 509 for space flight
participants, codified at 14 CFR part 460, also do not specify any
limitations on a space flight participant's conduct or operations
during a launch or reentry. See 14 CFR 460.41, et. seq.\2\ The only
place where the FAA limits space-flight-participant conduct or
operations is in the preamble to the Human Space Flight rule that
created part 460. There the FAA states that:
--------------------------------------------------------------------------\2\ The pertinent FAA regulations simply require that space
flight participants: (1) be informed of risk; (2) execute a waiver
of claims against the U.S. Government; (3) receive training on how
to respond to emergency situations; and (4) not carry any weapons
onboard. See 14 CFR Sec. Sec. 460.45-460.53.
For public safety reasons, the FAA will not allow space flight
participants to pilot launch or reentry vehicles at this time. A
space flight participant who wants to pilot a launch or reentry
vehicle would have to become an employee or independent contractor
of the operator to acquire vehicle and mission-specific training.
The operator will be in a better position to evaluate the skills of
an employee or independent contractor than of a space flight
participant, particularly as those skills relate to the requirements
of the operator's particular vehicle. The FAA acknowledges that this
restriction may create a dilemma for someone who wishes to acquire
training in order to become employed, but, while the technology is
so new, it is important for public safety that pilots be highly
skilled at the outset.\3\
--------------------------------------------------------------------------\3\ Human Space Flight Requirements Final Rule, 71 FR at 75618.
As can be seen, the FAA's concern with space flight participants
interacting with a launch or reentry vehicle was based on the
possibility that space flight participants would not have the proper
vehicle and mission-specific training. However, as NASA notes, NASA
astronauts must meet rigorous medical and training requirements, which
3/4
6/9/2014
include training specific to each mission, launch vehicle, and reentry

vehicle. Because NASA astronauts are not the untrained space-flight
participants originally contemplated by the FAA, the considerations
underlying the policy have, at best, a limited applicability to NASA
astronauts. Thus, for the scenarios currently envisioned, NASA
astronauts may engage in operational activities during a licensed
launch or reentry to ensure safety and mission success
C. Jurisdiction
We note that Chapter 509 does not apply to launches or reentries
the U.S. Government carries out for itself. 51 U.S.C. 50919(g).
Accordingly, NASA is not carrying out the launches or reentries that
are subject to Chapter 509. In the event, not contemplated in this
interpretation, that a NASA astronaut
[[Page 72013]]
exercised sufficient operational control to carry out the launch or
reentry, Sec. 50919(g) would serve as a bar to FAA licensing the
activity.
In the scenarios described above, as currently under development by
launch and reentry operators, the NASA astronaut would likely not
affect the flight path of the vehicle during a nominal launch. During a
launch, the astronaut would likely only manipulate the flight path of
the vehicle if an emergency arose. Accordingly, section 50919(g) would
not limit a NASA astronaut's ability to engage in operational functions
during launch. Most of the conduct or operations would simply
constitute the execution of emergency training required of space flight
participants by Sec. 460.51.
The analysis for a reentry is similar to that of a launch, with
some additional consideration for the possible manual operation of the
reentry vehicle by a NASA astronaut. Specifically, a NASA astronaut
could initiate reentry manually, but because the scenarios have the
reentry operator's flight computer directing the reentry, the NASA
astronaut's interaction would not be sufficient to constitute NASA
carrying out the reentry. Additionally, the NASA astronaut's exercise
of manual control over the vehicle in an off-nominal situation would
also not rise to NASA carrying out the reentry because, as discussed
above, in an off-nominal situation, the astronaut would largely be
implementing procedures created by a commercial launch or reentry
operator for purposes of safety or mission success.
In conclusion, Chapter 509 and the FAA's regulations impose no
operational constraints on NASA astronauts for the scenarios envisioned
here.
Issued in Washington, DC, on November 21, 2013.
Mark W. Bury,
Assistant Chief Counsel for International Law, Legislation and
Regulations.
[FR Doc. 2013-28405 Filed 11-29-13; 8:45 am]
BILLING CODE 4910-13-P
4/4
PRECEDENTIAL
UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
_____________
No. 12-2548
_____________
UNITED STATES OF AMERICA,
Appellant
v.
HARRY KATZIN; MICHAEL KATZIN; MARK LOUIS
KATZIN, SR.
______________
APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. Action No. 5:11-cr-00226)
District Judge: Honorable Gene E.K. Pratter
______________
Argued March 19, 2013
______________
Before: SMITH, GREENAWAY, JR., and VAN
ANTWERPEN, Circuit Judges.
1
(Opinion Filed: October 22, 2013)

______________
Robert A. Zauzmer, Esq. [ARGUED]
Emily McKillip, Esq.
Zane D. Memeger, Esq.
Thomas M. Zaleski, Esq.
Office of United States Attorney
615 Chestnut Street Suite 1250
Philadelphia, PA 19106
Counsel for Appellant The United States of America
Thomas A. Dreyer, Esq. [ARGUED]

6 Dickinson Drive, Building 100
Chadds Ford, PA 19317-0000
Counsel for Appellee Harry Katzin
William A. DeStefano, Esq.
Stevens & Lee
1818 Market Street, 29th Floor
Philadelphia, PA 19103-0000
Counsel for Appellee Michael Katzin
Rocco C. Cipparone, Jr., Esq. [ARGUED]
205 Black Horse Pike
Haddon Heights, NJ 08035-0000
Counsel for Appellee Mark Louis Katzin, Sr.
Benjamin E. Wizner, Esq.
American Civil Liberties Union
National Security Project
125 Broad Street, 18th Floor
2
New York, NY 10004

Catherine N. Crump, Esq. [ARGUED]
Nathan Wessler, Esq.
New York, NY 10004
Counsel for Amicus Appellees the American Civil
Liberties Union Foundation
Witold J. Walczak, Esq.
Sara J. Rose, Esq.
313 Atwood Street
Pittsburgh, PA 15213-0000
New York, NY 10004
Counsel for Amicus Appellees the American Civil
Liberties Union Foundation of Pennsylvania

New York, NY 10004
Hanni M. Fakhoury, Esq.
Marcia Hoffman, Esq.
Electronic Frontier Foundation
815 Eddy Street
3
San Francisco, CA 94109

Counsel for Amicus Appellees the Electronic Frontier
Foundation
Peter Goldberger, Esq.
50 Rittenhouse Place
Ardmore, PA 19003
New York, NY 10004
Counsel for Amicus Appellee the National Association
of Criminal Defense Lawyers
______________
OPINION
______________
GREENAWAY, JR., Circuit Judge.
This appeal stems from the Governments warrantless
installation of a Global Positioning System device (a GPS
device or GPS tracker) to track the movements of
Appellee Harry Katzins van. Harry Katzin, along with his
brothers Mark and Michael (collectively, Appellees),
claims that attaching the GPS device without a warrant
violated the Fourth Amendment.
The United States
Government (Appellant or Government) argues that: (a) a
warrant is not required to install a GPS device; (b) even if a
warrant were required, the police were acting in good faith;
and (c) in any case, Mark and Michael lack standing to
4
contest admissibility of evidence recovered from Harry

Katzins van.
The instant case therefore calls upon us to decide two
novel issues of Fourth Amendment law: First, we are asked
to decide whether the police are required to obtain a warrant
prior to attaching a GPS device to an individuals vehicle for
purposes of monitoring the vehicles movements (conduct a
GPS search). If so, we are then asked to consider whether
the unconstitutionality of a warrantless GPS search may be
excused for purposes of the exclusionary rule, where the
police acted before the Supreme Court of the United States
proclaimed that attaching a GPS device to a vehicle
constituted a search under the Fourth Amendment. For the
reasons discussed below, we hold that the police must obtain
a warrant prior to a GPS search and that the conduct in this
case cannot be excused on the basis of good faith.
Furthermore, we hold that all three brothers had standing to
suppress the evidence recovered from Harry Katzins van.
We therefore will affirm the District Courts decision to
suppress all fruits of the unconstitutional GPS search.
I.
FACTS AND PROCEDURAL HISTORY
Given that the issues in this matter touch upon several

forms of electronic tracking devices, we feel it necessary
in service of our forthcoming analysis to embark on a brief
discussion of the relevant technology before delving into the
specific circumstances surrounding Appellees.
5
A.
Tracking Technology
This case concerns a slap-on GPS tracker, so called

because it magnetically attaches to the exterior of a target
vehicle, is battery operated, and thereby requires no electronic
connection to the automobile. The tracker uses the Global
Positioning System a network of satellites originally
developed by the military to determine its own location
with a high degree of specificity and then sends this data to a
central server. This check-and-report process repeats every
few minutes (depending on the tracker), thereby generating a
highly accurate record of the trackers whereabouts
throughout its period of operation. The great benefit of such
a system apart from its accuracy is that anyone with
access to the central server can analyze or monitor the
location data remotely. These aspects make GPS trackers
particularly appealing in law enforcement contexts, where the
police can attach a tracker to some vehicle or other asset and
then remotely monitor its location and movement.
GPS technology must be distinguished from the more
primitive tracking devices of yesteryear such as beepers.
Beepers are nothing more than radio transmitter[s], usually
battery operated, which emit[] periodic signals that can be
picked up by a radio receiver. United States v. Knotts, 460
U.S. 276, 277 (1983). In contrast to GPS trackers, beepers do
not independently ascertain their location they only
broadcast a signal that the police can then follow via a
corresponding receiver. Moreover, beeper signals are rangelimited: if the police move far enough away from the beeper,
they will be unable to receive the signal that the unit
broadcasts. At bottom, then, beepers are mere aids for police
officers already performing surveillance of a target vehicle.
Unlike GPS trackers, beepers require that the police expend
6
resources time and manpower to physically follow a

target vehicle.
B.
The Brothers Katzin
A spectre was haunting Delaware, Maryland, and New

Jersey in 2009 and 2010 the three states had been hit by a
wave of pharmacy burglaries, many of which affected Rite
Aid pharmacies. The method used in the various crimes was
largely consistent: in many cases, the alarm systems for the
pharmacies would be disabled by cutting the external phone
lines. The local police approached the FBI for help
(collectively, the police) and the hunt was on.
By mid-May 2010, a suspect emerged: a local
electrician named Harry Katzin. Not only had he recently
been caught burglarizing a Rite Aid pharmacy, but he and his
brothers Mark and Michael had criminal histories that
included arrests for burglary and theft. Over the course of the
following months, the joint state and federal investigation
began receiving reports of seeing Harry Katzin around Rite
Aid pharmacies throughout the three states. For example, in
late October 2010, local police in Pennsylvania encountered
Harry Katzin crouching beside some bushes outside of a Rite
Aid after responding to reports of suspicious activity. The
police did not arrest him, but discovered the next day that the
phone lines to the pharmacy had been cut. The next month,
Harry Katzin, along with one of his brothers and one other
individual, was approached by the police as he sat outside of
a different Rite Aid in his Dodge Caravan. After Harry
Katzin consented to a search, the police discovered electrical
tools, gloves, and ski masks. Harry Katzin explained that
these were tools of the electricians trade and the police
allowed the men to leave. The telephone lines to this Rite
7
Aid had also been cut. Soon thereafter, the police obtained
footage of another recently burglarized Rite Aid showing that
a vehicle similar to Harry Katzins van had been parked
outside for a long period of time. As the pieces began falling
into place, the police proceeded with their next step:
electronic tracking. The police knew that Harry Katzin
regularly parked his van on a particular street in Philadelphia.
Thus, in the early hours of a mid-December morning, after
consulting with the United States Attorneys office, but
without obtaining a warrant, the FBI affixed a slap-on GPS
tracker to the exterior of Harry Katzins van.
While the police do not appear to have set a time limit
for using the GPS tracker, the device yielded the results they
were after within several days. According to the tracker,
Harry Katzins van had left Philadelphia on the evening of
December 15, 2010, and had traveled to the immediate
vicinity of a Rite Aid in a neighboring town. Through use of
the device, the police could see that the van had been driven
around the town for several minutes before parking at a
specific location for over two hours. Thats when the FBI
began to tighten the net. They alerted local police as to Harry
Katzins whereabouts, but cautioned them not to approach too
closely for fear of tipping off either Harry Katzin or any
individual he may have been traveling with. When the FBI
noticed that the van was once again on the move, the call
came in: the van was to be taken.
While state troopers stopped Harry Katzins van on a
Pennsylvania highway, a squad of local police officers
investigated the Rite Aid closest to where Harry Katzins van
had been parked; they found that it had been burglarized and
relayed this information to the troopers. Inside the van,
troopers found Harry at the wheel, with Mark and Michael as
8
passengers. From outside of the van, the troopers could see

merchandise and equipment from the burglarized Rite Aid,
including pill bottles and Rite Aid storage bins. The police
impounded the van and arrested the Katzin brothers.
All three brothers moved to suppress the evidence
discovered in the van. The Government opposed the motions,
arguing: (a) that a warrant was not required for use of the
GPS device; (b) that the police had acted in good faith when
installing the GPS device; and (c) that Mark and Michael
lacked standing to challenge the GPS search and therefore
could not move to suppress any of the evidence. The District
Court held in favor of the brothers and suppressed all of the
evidence found in the van. United States v. Katzin, No. 11226, 2012 WL 1646894, *11 (E.D. Pa. May 9, 2012). This
appeal followed.
II.
JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction to hear this case

pursuant to 18 U.S.C. 3231; our jurisdiction stems from 18
U.S.C. 3731. In reviewing a district courts ruling on a
motion to suppress, we review [the] courts factual findings
for clear error, and we exercise de novo review over its
application of the law to those factual findings. United
States v. Pavulak, 700 F.3d 651, 660 (3d Cir. 2012) (citing
United States v. Coles, 437 F.3d 361, 365 (3d Cir. 2006)).
III. GPS SEARCHES
REQUIREMENT
AND
THE
WARRANT
The Fourth Amendment mandates that
9
[t]he right of the people to be secure in their

persons, houses, papers, and effects against
unreasonable searches and seizures, shall not be
violated, and no Warrant shall issue, but upon
probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or things
to be seized.
U.S. Const. amend. IV. Prior to 1967, the Supreme Court of
the United States interpreted this language generally to mean
that the Fourth Amendment prevented the police from
physically intruding upon an individuals private property for
purposes of conducting a search (the physical intrusion
theory). See United States v. Jones, 132 S. Ct. 945, 949-50
(2012); see also, e.g., Olmstead v. United States, 277 U.S.
438 (1928) (upholding the warrantless wiretapping of a
targets telephone lines primarily because [t]here was no
entry of the houses or offices of the defendants), overruled
in part by Katz v. United States, 389 U.S. 347 (1967).1 A
1
We note that, at times, the Supreme Court has referred to

this theory in the language of trespass rather than physical
intrusion. Compare Jones, 132 S. Ct. at 949-50, with Florida
v. Jardines, 133 S. Ct. 1409, 1414 (2013). As the law
currently stands, we think the latter term physical
intrusion is the more appropriate. See Jardines, 133 S.
Ct. at 1420-21 (Alito, J., dissenting) (criticizing the Supreme
Courts most recent application of the physical intrusion
theory and noting that trespass law provides no support for
the Courts holding today); Silverman v. United States, 365
U.S. 505, 511 (1961) ([W]e need not pause to consider
whether or not there was a technical trespass under the local
10
change came in 1967 with the decision in Katz v. United

States, which involved the warrantless wiretapping of a public
phone booth. 389 U.S. 347. In Katz, the Court announced
that the Fourth Amendment protects people, not places, id.
at 351, a principle that eventually became embodied in what
Justice Harlan termed an individuals reasonable expectation
of privacy (the privacy theory), id. at 360-61 (Harlan, J.,
concurring). In subsequent years, the privacy theory became
the driving force behind Fourth Amendment jurisprudence,
while the physical intrusion theory lay dormant. See, e.g.,
United States v. Santillo, 507 F.2d 629, 632 (3d Cir. 1975)
(noting that the trespassory concepts [in early Fourth
Amendment jurisprudence] . . . have since been discredited
(footnotes omitted) (citing Katz, 389 U.S. at 352-53)).
A.
Beepers, GPS Devices, and the Fourth Amendment
It was in this context that courts began grappling with

the constitutionality of using tracking devices. For purposes
of our discussion, we begin with the Fifth Circuits 1981
decision in United States v. Michael, 645 F.2d 252 (5th Cir.
1981) (en banc), which considered the warrantless use of a
beeper for surveillance of a suspected drug manufacturer. In
Michael, the court assumed that installation of the beeper on
the exterior of a van constituted a search before holding that
the DEA agents conduct was constitutional since they acted
based on reasonable suspicion. Id. at 256-59 (holding that
defendant had reduced privacy expectations in the
property law relating to party walls. Inherent Fourth
Amendment rights are not inevitably measurable in terms of
ancient niceties of tort or real property law. (footnote
omitted)).
11
movement of his automobile and that the use of a beeper was

minimally intrusive). A pair of dissenting opinions argued
that, among other things, the DEA agents were required to
obtain a warrant because they physically intruded upon the
defendants property (i.e., his car). See, e.g., id. at 260-70
(Tate, J., dissenting).
Two years later, the Supreme Court took up the beeper
issue, ultimately holding that concealing a beeper inside of a
container that was then loaded onto a targets vehicle did not
constitute a search, where the beepers placement was
accomplished with the container owners consent. United
States v. Knotts, 460 U.S. 276, 279-80, 285 (1983). In so
doing, the Supreme Court explained that [a] person traveling
in an automobile on public thoroughfares has no reasonable
expectation of privacy in his movements from one place to
another. Id. at 281. Nonetheless, the Courts ruling was not
unequivocal, with the Majority cautioning that twenty-four
hour, dragnet type law enforcement practices could
implicate different constitutional principles. Id. at 283-84.
The Supreme Court returned to beepers the following
year when it decided United States v. Karo, 468 U.S. 705
(1984), which centered on the DEAs use of a beeper to
collect information regarding the whereabouts of objects
inside a private residence. In Karo, the DEA had once again
secreted a beeper inside of a container also with the
container owners consent and ensured that the container
would be loaded into the targets vehicle. Id. at 708-09. The
agents then used the beeper to track the vehicle to various
locations and determined that the beeper-concealing container
had been brought inside several residences (something that
they could not verify with visual surveillance). Id. at 709-10.
In holding that use of the beeper was unconstitutional under
12
those circumstances, the Court explained that, unlike in

Knotts where information was voluntarily conveyed to
anyone who wanted to look the information obtained by
monitoring the beeper while inside a private residence gave
the DEA information that could not have been visually
verified. Id. at 715 (internal quotation marks omitted). In a
partial dissent, Justice Stevens (joined by Justices Brennan
and Marshall) argued that placing the beeper inside a
container, which was then loaded into the targets vehicle,
implicated both a seizure and a search within the meaning of
the Fourth Amendment. Id. at 728 (Stevens, J., dissenting in
part).
After the beeper-centered decisions in Michael, Knotts,
and Karo, technological advances heralded the advent of a
new electronic surveillance device: the GPS tracker. One of
the first decisions to address the constitutionality of this new
technology was United States v. McIver, 186 F.3d 1119 (9th
Cir. 1999). In McIver, the Ninth Circuit rejected defendants
argument that installing a GPS device (along with a beeper)
on the undercarriage of [the defendants automobile]
constituted a seizure of the vehicle. Id. at 1127 (McIver
did not present any evidence that the placement of the
magnetized tracking devices deprived him of dominion and
control of his [vehicle], nor did he demonstrate that the
presence of these objects caused any damage to the electronic
components of the vehicle.). The court also concluded that,
because McIver could demonstrate no reasonable expectation
of privacy in the exposed undercarriage of his car, the use of
the electronic devices did not constitute a search under the
Fourth Amendment. Id. at 1126-27.
The Seventh Circuit followed suit in 2007, with Judge
Posner explaining that attaching a GPS device to a target
13
vehicle did not constitute a search because such a device

merely substitutes for following a car on a public street, an
activity that is unequivocally not a search within the
meaning of the [Fourth Amendment]. United States v.
Garcia, 474 F.3d 994, 997 (7th Cir. 2007). However,
echoing the Supreme Courts concerns in Knotts, the Seventh
Circuit warned that it might need to reevaluate its conclusion
if faced with a case concerning use of GPS technology for
mass surveillance. Id. at 998.
Three years later, the Ninth Circuit returned to the
topic of GPS tracking, reaffirming its conclusion that
attaching a GPS tracker to the undercarriage of a vehicle did
not constitute a search. United States v. Pineda-Moreno, 591
F.3d 1212, 1214-15 (9th Cir. 2010). The appellant filed a
petition for rehearing en banc, and though the Ninth Circuit
denied the petition, Chief Judge Kozinski issued a fiery
dissent from the denial, accusing the Pineda-Moreno majority
of being inclined to refuse nothing to the needs of law
enforcement. United States v. Pineda-Moreno, 617 F.3d
1120, 1121 (9th Cir. 2010) (Kozinski, C.J., dissenting). In his
dissent, the Chief Judge noted that GPS devices have little in
common with the primitive devices in Knotts, in part
because, unlike GPS devices, beepers still require[] at least
one officer and usually many more to follow the
suspect. Id. at 1124. Thus, the dissent noted, while [y]ou
can preserve your anonymity from prying eyes, even in
public, by traveling at night, through heavy traffic, in crowds,
by using a circuitous route, disguising your appearance,
passing in and out of buildings and being careful not to be
followed, there is no hiding from the all-seeing network of
GPS satellites that hover overhead, which never sleep, never
blink, and never lose attention. Id. at 1126.
14
That same year, the Eighth Circuit became the third of

our sister courts to say that attaching a GPS device to a target
car was not a constitutional violation. United States v.
Marquez, 605 F.3d 604, 609-10 (8th Cir. 2010). While the
Marquez court based its ruling on standing grounds, it still
announced albeit in dicta that [w]hen electronic
monitoring does not invade upon a legitimate expectation of
privacy, no search has occurred. Id. at 609 (A person
traveling via automobile on public streets has no reasonable
expectation of privacy in his movements from one locale to
another. (citing Knotts, 460 U.S. at 281)).
Later that year, the D.C. Circuit split from our sisters,
holding that attaching a GPS device to a defendants vehicle
constituted a search under the Fourth Amendment that
required the police to obtain a warrant. United States v.
Maynard, 615 F.3d 544 (D.C. Cir. 2010). In so doing, the
court rejected the Knotts-based argument that a drivers
movements are exposed to the public and therefore do not
constitute information shielded by the Fourth Amendment.
Id. at 560 ([W]e hold the whole of a persons movements
over the course of a month is not actually exposed to the
public because the likelihood a stranger would observe all
those movements is not just remote, it is essentially nil.). At
the same time, the court in Maynard rejected the applicability
of the automobile exception to the warrant requirement,
holding that while the exception permits the police to search
a car without a warrant if they have reason to believe it
contains contraband[, it] . . . does not authorize them to install
a tracking device on a car without the approval of a neutral
magistrate. Id. at 567. A year later, the Supreme Court
granted certiorari, changing the name to United States v.
Jones. 131 S. Ct. 3064 (2011).
15
In reviewing the Maynard decision (now called Jones),

the Supreme Court held that magnetically attaching a GPS
device to a suspects automobile constituted a search for
purposes of the Fourth Amendment. Jones, 132 S. Ct. at 949.
Rather than focusing on whether the owner of the vehicle had
a reasonable expectation of privacy while driving the car over
public streets, the Court (with Justice Scalia writing for the
majority) concluded that attaching a GPS device to a target
car constituted a physical intrusion upon the vehicle owners
private property. Id. (The Government physically occupied
private property for the purpose of obtaining information.
We have no doubt that such a physical intrusion would have
been considered a search within the meaning of the Fourth
Amendment when it was adopted.).
Justice Alito concurred in the judgment, but did not
join the majoritys opinion. Id. at 957 (Alito, J., concurring).
In his opinion joined by Justices Ginsburg, Breyer, and
Kagan the appropriate Fourth Amendment analysis was
the reasonable expectation of privacy inquiry under Katz.
The outcome would be no different if the Court had applied
Katz, the concurrence argued, because societys expectation
has been that law enforcement agents and others would not
and indeed, in the main, simply could not secretly monitor
and catalogue every single movement of an individuals car
for a very long period of time. Id. at 964.
Justice Sotomayor, who joined the majority, also filed
a concurrence. Id. at 954 (Sotomayor, J., concurring). And
while she agreed with portions of Justice Alitos reasoning,
she nonetheless rebuked the concurring Justices for
potentially countermanding an irreducible constitutional
minimum:
When the Government physically invades
personal property to gather information, a search occurs. Id.
16
at 955. Moreover, Justice Sotomayor argued that GPS

devices present law-enforcement agencies with a low-cost,
low-resource method of tracking citizens. As such, even
short-term surveillance constituted an impermissible search
under the Fourth Amendment. Id. at 955-57 (calling, also, for
potentially reassessing the privacy interests individuals enjoy
in information disclosed to third parties so as to account for
the new realities of the digital age).
Among the issues that Jones left open, however, was
whether warrantless use of GPS devices would be
reasonable and thus lawful under the Fourth
Amendment [where] officers ha[ve] reasonable suspicion, and
indeed probable cause to execute such searches. Id. at 954
(citation and internal quotation marks omitted). The instant
case squarely presents this very issue for our consideration.2
2
At the time of this writing, we are not aware of nor has

either party brought to our attention any decision by one of
our sister circuits that directly and definitively resolves the
matter. As our brethren in the First Circuit noted earlier this
year:
Few courts (and no circuits that we know of) have grappled
with the warrant question so far, largely because the searches
at issue in recent cases occurred pre-Jones, allowing the
government to argue, and a number of courts to find, that the
good-faith exception [to the exclusionary rule] would apply
even if the searches were unconstitutional.
United States v. Sparks, 711 F.3d 58, 62 (1st Cir. 2013). As
we explain at greater length below, we do not believe that the
good-faith exception applies in this case and consequently
take on the warrant issue.
17
We therefore turn now to a consideration of the Fourth

Amendments warrant requirement and the various albeit
circumscribed exceptions thereto.
B.
The Warrant Requirement and Its Exceptions
The Fourth Amendment does not protect individuals

from all searches, just unreasonable ones. Indeed, as the
Supreme Court has noted: [T]he ultimate measure of the
constitutionality
of
a
governmental
search
is
reasonableness. Vernonia Sch. Dist. 47J v. Acton, 515
U.S. 646, 652 (1995). [W]hether a particular search meets
the reasonableness standard is judged by balancing its
intrusion on the individuals Fourth Amendment interests
against its promotion of legitimate governmental interests.
Id. at 652-53 (internal quotation marks omitted). Under this
general . . . approach, courts look to the totality of the
circumstances in performing this balancing test. United
States v. Knights, 534 U.S. 112, 118 (2001) (internal
quotation marks omitted).
More often than not, courts strike this balance in
favor of the procedures described by the Warrant Clause of
the Fourth Amendment. Skinner v. Ry. Labor Execs. Assn,
489 U.S. 602, 619 (1989). Thus, [i]t remains a cardinal
principle that searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment subject only to
a few specifically established and well-delineated
exceptions. United States v. Harrison, 689 F.3d 301, 306
(3d Cir. 2012) (internal quotation marks omitted). This
protection applies to both houses and effects, barring the
presence of some exceptional circumstances that would
permit an exception. See United States v. Jeffers, 342 U.S.
18
48, 51 (1951) (quoting Johnson v. United States, 333 U.S. 10,

14 (1948)).
We therefore begin with the following observation:
under the physical intrusion theory of the Fourth Amendment,
the police actions in this case i.e., physical entry upon and
occupation of an individuals house or effects for purposes of
ongoing GPS tracking are highly disconcerting. In
Silverman v. United States, 365 U.S. 505 (1961), the police,
acting without a warrant, had surreptitiously driven a spike
mic (a long spike capable of picking up sound) through the
wall of a neighboring house and into the heating duct of the
defendants home. Id. at 506-07. The Court proclaimed this
to be beyond the pale of even those decisions in which a
closely divided Court has held that eavesdropping
accomplished by other than electronic means did not amount
to an invasion of Fourth Amendment rights. Id. at 509-10;
id. at 511-12 (This Court has never held that a federal officer
may without warrant and without consent physically entrench
into a mans office or home, there secretly observe or listen,
and relate at the mans subsequent criminal trial what was
seen or heard. (emphasis added)). While the Fourth
Amendment recognizes a difference between the invasion of
a store, dwelling house, or other structure . . . of which a . . .
warrant readily may be obtained and a search of a ship, motor
boat, wagon, or automobile . . . where it is not practicable to
secure a warrant, that difference, on its own, still mandates
that a warrantless search of a car be based on probable cause
and, even then, only in a highly circumscribed universe of
cases. Carroll v. United States, 267 U.S. 132, 153 (1925).3
3
We address the automobile exception, first recognized in

Carroll, in greater detail below.
19
We thus have no hesitation in holding that the police

must obtain a warrant prior to attaching a GPS device on a
vehicle, thereby undertaking a search that the Supreme Court
has compared to a constables concealing himself in the
targets coach in order to track its movements. Jones, 132 S.
Ct. at 950 n.3. In the following section, therefore, we analyze
whether any additional considerations weigh in favor of
finding warrantless GPS searches to be reasonable.
1. Valid, Warrantless Searches Based on Less than
Probable Cause
The Government first argues that the warrantless use
of a GPS device in this case constitutes a reasonable search
because the police action was based on reasonable suspicion.4
In service of this argument, the Government posits that
[s]ince Terry v. Ohio, 392 U.S. 1 (1968), the Court has
identified various law enforcement actions that qualify as
Fourth Amendment searches or seizures, but that may
nevertheless be conducted without a warrant or probable
cause. (Appellant Br. at 23.) This is true. The Government
cites to three general categories of cases that permit
warrantless searches based on less than probable cause:
special needs cases, decisions addressing circumstances in
which individuals have lessened privacy interests, and the
progeny of Terry v. Ohio. We consider each category in turn
and find that none apply to the instant matter.
We assume, without deciding, that the police had reasonable

suspicion for purposes of our analysis.
20
a.
The Special Needs Cases
As the Supreme Court has explained: We have

recognized exceptions to th[e Warrant Clause] when special
needs, beyond the normal need for law enforcement, make the
warrant and probable-cause requirement impracticable.
Skinner, 489 U.S. at 619-20 (internal quotation marks
omitted) (collecting cases). Thus, so long as the primary
purpose is not to uncover evidence of ordinary criminal
wrongdoing, City of Indianapolis v. Edmond, 531 U.S. 32,
42 (2000), courts should balance the governmental and
privacy interests to assess the practicality of the warrant and
probable-cause requirements in the particular context,
Skinner, 489 U.S. at 619. See also United States v. Ward, 131
F.3d 335, 342 (3d Cir. 1997). Such special needs cases,
many of which permit searches without any particularized
suspicion, constitute a closely guarded category of Fourth
Amendment jurisprudence. Ferguson v. City of Charleston,
532 U.S. 67, 77 (2001) (internal quotation marks omitted).
In the instant case, the reasoning behind the special
needs doctrine is inapposite. The Government cannot
articulate a particularized interest, other than a generalized
interest in law enforcement.
Indeed, the Government
contends that if officers are required to obtain a warrant and
have probable cause prior to executing a GPS search,
officers could not use GPS devices to gather information to
establish probable cause, which is often the most productive
use of such devices. (Appellant Br. at 27 (emphasis added).)
This statement which wags the dog rather vigorously
runs headlong into Fergusons admonition that, to qualify for
a special needs exception, the primary purpose of a search
cannot be to generate evidence for law enforcement
purposes. 532 U.S. at 83 (emphasis omitted); Edmond, 531
21
U.S. at 48 (finding that a search did not qualify under the

special needs doctrine where the primary purpose of the
[search] is ultimately indistinguishable from the general
interest in crime control).5
b.
Cases of Diminished Privacy Expectations
Still, the special needs cases are not the only

decisions to permit warrantless searches based on less than
probable cause. The Government also cites a number of cases
that address situations where the targets of a search enjoyed a
lower expectation of privacy.6 See, e.g., United States v.
5
The Government contends that requiring a warrant prior to

GPS searches would seriously impede the governments
ability to investigate drug trafficking, terrorism, and other
crimes. (Appellant Br. at 27.) We fail to see how such a
conclusory assertion suffices to except GPS searches from the
requirements of the Fourth Amendments Warrant Clause.
Doubtless, we are aware of the dangers posed by terrorism
and comparably reprehensible criminal activity. However,
we would work a great disservice by permitting the word
terrorism (in the absence of any other information or
circumstance) to act as a skeleton key to the liberties
guaranteed under the Constitution.
6
The seemingly paradoxical exercise of analyzing a search

based on physical intrusion under the rubric of privacy
expectations does not escape our notice. Still, as the Supreme
Court noted in Jones: The Katz reasonable-expectation-ofprivacy test has been added to, not substituted for, the
common-law trespassory test. Jones, 132 S. Ct. at 952.
Moreover, we note that even before Katz, the Supreme Court
was balancing the need for effective law enforcement
22
Knights, 534 U.S. 112, 121 (2001) (When an officer has

reasonable suspicion that a probationer subject to a search
condition is engaged in criminal activity, there is enough
likelihood that criminal conduct is occurring that an intrusion
on the probationers significantly diminished privacy interests
is reasonable.). We do not think such reasoning is
applicable to this case.
The police executed a GPS search against an
individual Harry Katzin who, at least when the police
attached the GPS device, enjoyed the full breadth of privacy
interests owed to him under the Constitution. That the search
was executed on a car is, likewise, unpersuasive. While the
Supreme Court has acknowledged that individuals enjoy a
lowered expectation of privacy in their cars, United States v.
Chadwick, 433 U.S. 1, 12 (1977), abrogated by California v.
Acevedo, 500 U.S. 565 (1991), absent circumstances that are
not present in this case, the police must still have probable
cause, Acevedo, 500 U.S. at 579-80.
c.
Terry and Its Progeny
In no small part, the Government argues that the

warrantless use of slap-on GPS devices is permissible based
on reasonable suspicion under the principles of Terry v. Ohio,
392 U.S. 1. In Terry, the Supreme Court held that a police
officer could stop an individual on the street for questioning
against the right of privacy in considering whether a
particular situation constituted an exception to the Fourth
Amendments warrant requirement. Johnson, 333 U.S. at 1415 (considering warrantless searches based on probable
cause).
23
and then frisk him to ascertain whether the individual was

carrying weapons. Terry, 392 U.S. at 22-27. More
specifically, the Court held that a warrantless search the
stop was permissible when based on less than probable
cause if the police officer observes unusual conduct which
leads him reasonably to conclude in light of his experience
that criminal activity may be afoot. Id. at 30. As for the
search the frisk the Court explained that a search was
permitted when the officer reasonably believed that the
person[] with whom he is dealing may be armed and
presently dangerous . . . and where nothing in the initial
stages of the encounter serves to dispel his reasonable fear for
his own or others safety. Id. Such a search, given that it is
performed without probable cause, must be limited to that
which is necessary for the discovery of weapons which might
be used to harm the officer or others nearby, and may
realistically be characterized as something less than a full
search. Id. at 26. The Terry framework has since expanded
to include situations where, for example, an automobile has
been stopped. See, e.g., Michigan v. Long, 463 U.S. 1032
(1983); Pennsylvania v. Mimms, 434 U.S. 106 (1977); United
States v. Yamba, 506 F.3d 251 (3d Cir. 2007).
We find Terry and its progeny to be inapposite in this
situation. While the frisk in Terry involved a pat-down of an
individual, that search was limited to a specific instance in
time (and limited to ascertaining whether the individual was
armed or otherwise posed a danger to officer safety). A GPS
search, in contrast, is an ongoing, vastly broader endeavor.7
7
The Government argues that [a] Terry search is the

paradigmatic example of a law enforcement action, absent
special needs . . . , in which the balancing of law
24
Cf. Berger v. New York, 388 U.S. 41, 59 (1967) (noting that
eavesdropping for a two-month period is the equivalent of a
series of intrusions, searches, and seizures). Over the course
of the GPS trackers operation, the device can generate[] a
precise, comprehensive record of a persons public
movements that reflects a wealth of detail about her familial,
political, professional, religious, and sexual associations.
Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring).8
enforcement interests and privacy rights yields a standard less
than probable cause. (Appellant Br. at 33.) This is
incorrect. While the Court found that the stop was
permissible despite merely serving a legitimate investigative
function, that same rationale did not apply to the frisk.
Terry, 392 U.S. at 22-24. Rather, the Court explicitly noted,
in evaluating the search of an individuals person, that it was
now concerned with more than the governmental interest in
investigating crime.
Id. at 23 (emphasis added).
Specifically, the Terry court looked to the more immediate
interest of the police officer in taking steps to assure himself
that the person with whom he is dealing is not armed with a
weapon that could unexpectedly and fatally be used against
him. Id. The police, in attaching a GPS device to a car, are
not looking for weapons and generally are not attempting to
safeguard anyones immediate safety they are attempting
to investigate crime.
8
The Government also seems to suggest that our evaluation

should turn on how long the GPS unit remained attached to
Harry Katzins van. (Appellant Br. at 25.) It is unclear,
however, whether such a test would prove workable. It is not
apparent whether, pursuant to such a test, the government
would need to know how long a GPS search would last or
25
Ultimately, we disagree with the Governments

arguments advocating a reasonable suspicion standard.
While the interests the police wished to further in this case are
certainly important, the same interests arise in every
investigation where the police have a potential suspect. We
are hard pressed to say, therefore, that the police can
without warrant or probable cause embark on a lengthy
program of remote electronic surveillance that requires almost
no law enforcement resources and physically intrudes upon
an ordinary citizens private property. Consequently, we hold
that absent some highly specific circumstances not present
in this case the police cannot justify a warrantless GPS
search with reasonable suspicion alone.9
whether they could, upon reaching some threshold duration,
request a warrant from the courts for further GPS
surveillance. We need not definitively resolve this question
now, however. In this case, it was only by dint of
coincidence that the GPS surveillance lasted for a mere
handful of days.
9
In support of its position, the Government points to the

Eighth Circuits decision in Marquez and the Fifth Circuits
decision in Michael. In Marquez, the court suggested that
[w]hen electronic monitoring does not invade upon a
legitimate expectation of privacy, no search has occurred.
605 F.3d at 610 ([W]hen police have reasonable suspicion
that a particular vehicle is transporting drugs, a warrant is not
required when, while the vehicle is parked in a public place,
they install a non-invasive GPS tracking device on it for a
reasonable period of time.). In Michael, the Fifth Circuit
explained that the reduced expectation of privacy with
respect to the movement of an automobile and the
26
nonintrusive nature of the procedure permitted DEA agents to

install a beeper on the defendants car. 645 F.2d at 257-58
(The actual installation of the beeper was much less intrusive
than the typical stop and frisk. Michael . . . was not detained
or questioned; he suffered no indignity; nothing from the
interior of the van was seized or searched; indeed, nothing
even from the vans exterior was removed. (footnote
omitted)).
The Governments reliance is misplaced. Both Michael and
Marquez were decided prior to Jones, and thus did not have
the benefit of: (a) the Courts reliance on the pre-Katz
trespass theory of the Fourth Amendment or (b) Justice
Sotomayors concurrence.
Moreover, both cases are
inapposite: In Marquez, the court found that the defendant
lacked standing to challenge the use of the GPS device and
therefore never reached the question of whether such use
constituted an unreasonable search. 605 F.3d at 609. The
Eighth Circuits discussion of reasonable suspicion is
therefore dicta, coming only while the court was musing on
what would happen [e]ven if [the defendant] had standing.
Id. In Michael, the Fifth Circuit focused on a beeper
which is markedly different from a GPS device and its
decision is therefore distinguishable. 645 F.2d 256-59.
Additionally, both decisions run up against the holding in
Maynard, where the D.C. Circuit explained that warrantless
installation of a GPS device by the police was per se
unreasonable under the Fourth Amendment. 615 F.3d at 56667.
27
2. Valid, Warrantless Searches Based on Probable

Cause
As an alternative, the Government suggests that
warrantless GPS searches can be constitutional if the police
have probable cause, pointing principally to a line of cases
addressing the automobile exception to the warrant
requirement.10 We do not agree.11
10
We note that a warrantless search based on probable cause

is also reasonable in the presence of certain exigent
circumstances that make the needs of law enforcement so
compelling that [a] warrantless search is objectively
reasonable under the Fourth Amendment. Kentucky v. King,
131 S. Ct. 1849, 1856 (2011) (internal quotation marks
omitted). Such exigent circumstances include, but are not
limited to, hot pursuit of a suspected felon, the possibility
that evidence may be removed or destroyed, and danger to the
lives of officers or others. United States v. Coles, 437 F.3d
361, 366 (3d Cir. 2006) (In these limited situations, the need
for effective law enforcement trumps the right of privacy and
the requirement of a search warrant, thereby excusing an
otherwise unconstitutional intrusion. (footnote omitted)). In
this case, we perceive (and the Government points to) no
exigency that would have justified the police in immediately
searching Harry Katzins van. We do not discount, therefore,
the possibility that under highly specific circumstances
such as where life is on the line, say the police can justify
undertaking a warrantless GPS search based on probable
cause.
11
Here we also assume, without deciding, that the police had

probable cause for purposes of our analysis.
28
Generally speaking, a warrantless search is not

rendered reasonable merely because probable cause existed
that would have justified the issuance of a warrant. See Vale
v. Louisiana, 399 U.S. 30, 34 (1970); see also Johnson, 333
U.S. at 14 (Any assumption that evidence sufficient to
support a magistrates disinterested determination to issue a
search warrant will justify the officers in making a search
without a warrant would reduce the Amendment to a nullity
and leave the peoples homes secure only in the discretion of
police officers.).
However, under the automobile
exception, we permit warrantless searches of any part of a
vehicle that may conceal evidence . . . where there is probable
cause to believe that the vehicle contains evidence of a
crime. United States v. McGlory, 968 F.2d 309, 343 (3d Cir.
1992) (internal quotation marks omitted); see also United
States v. Ross, 456 U.S. 798, 825 (1982) (If probable cause
justifies the search . . . , it justifies the search of every part of
the vehicle and its contents that may conceal the object of the
search.); United States v. Burton, 288 F.3d 91, 100 (3d Cir.
2002) (holding that warrantless searches of an automobile are
permitted if probable cause exists to believe it contains
contraband (internal quotation marks omitted)). That said,
the Supreme Court has recognized that [t]he word
automobile is not a talisman in whose presence the Fourth
Amendment fades away and disappears. Coolidge v. New
Hampshire, 403 U.S. 443, 461-62 (1971) (discussing the
automobile exception in the context of exigent
circumstances).12 Indeed, the automobile exception does not
12
The automobile exception began as part of the exigent

circumstances jurisprudence. Carroll, 267 U.S. at 153
(noting that the Fourth Amendment made a distinction for
searches of automobiles since it is not practicable to secure a
29
validate all warrantless automobile searches, but instead is

unquestionably [a] specifically established and well
delineated exception. Ross, 456 U.S. at 824 (internal
quotation marks omitted).
Thus, [t]he scope of a
warrantless search of an automobile . . . is defined by the
object of the search and the places in which there is probable
cause to believe that it may be found. Acevedo, 500 U.S. at
579-80 (quoting United States v. Ross, 456 U.S. 798, 824
(1982)).
We hold that the automobile exception is inapplicable
here. The key distinction in this case is the type of search at
issue.
While the Supreme Court has stated that the
automobile exception permits a search that is no broader and
no narrower than a magistrate could legitimately authorize by
warrant, Ross, 456 U.S. at 825, the search is still limited to a
warrant, because the vehicle can be quickly moved out of the
locality or jurisdiction in which the warrant must be sought).
Later cases expanded on this rationale, adding further
justification for why the police need not obtain a search
warrant for the car. Most significantly, after the Katz
decision had given precedential imprimatur to the language of
privacy, the Court explained in United States v. Chadwick,
that [o]ne has a lesser expectation of privacy in a motor
vehicle because its function is transportation and it seldom
serves as ones residence or as the repository of personal
effects. 433 U.S. at 12 (quoting Cardwell v. Lewis, 417
U.S. 583, 590 (1974)). Finally, the Supreme Court severed
the connection between the automobile exception and exigent
circumstances, holding that the exception has no separate
exigency requirement at all. Maryland v. Dyson, 527 U.S.
465, 466 (1999).
30
discreet moment in time. For example, the exception permits

the police to enter upon and search a vehicle to ascertain
whether it indeed contains the evidence that they suspect is
inside. Thus, assuming as we said we would that the
police had probable cause to believe that Harry Katzins van
contained some form of contraband, they would have been
justified in entering any part of [the] vehicle that may
conceal evidence. McGlory, 968 F.2d 343 (emphasis
added). Attaching and monitoring a GPS tracker is different:
It creates a continuous police presence for the purpose of
discovering evidence that may come into existence and/or be
placed within the vehicle at some point in the future.
It is no argument, then, to say that a GPS search
presents the type of circumstances that usually trigger the
automobile exception. It does not. While the police are still
physically intruding into a target vehicle for evidencegathering purposes, a GPS search extends the police intrusion
well past the time it would normally take officers to enter a
target vehicle and locate, extract, or examine the then-existing
evidence.13 For similar reasons, the case in favor of applying
the automobile exception fares no better if we look to the
13
We recognize that the Supreme Court has sanctioned

warrantless searches under the automobile exception that, for
example, have occurred some time after the police first
impounded a vehicle. See, e.g., United States v. Johns, 469
U.S. 478, 485-88 (1985). We think this to be of no moment
for our purposes. In cases such as Johns the search at issue
still occurs at a specific point in time and is specifically
limited in its scope to places in which there is probable cause
to believe that [contraband] may be found. Id. at 485-86
(internal quotation marks omitted).
31
ready mobility of the target vehicle. Burton, 288 F.3d at

100 ([T]he ready mobility of automobiles permits their
search based only on probable cause.); see also Maryland v.
Dyson, 527 U.S. 465, 467 (1999) (noting that the automobile
does not have a separate exigency requirement, partly
because vehicles are readily mobile). Simply put: attaching
and monitoring a GPS tracker does not serve the purposes
animating the automobile exception. As has already been
said: the automobile exception permits the police to intrude
into a vehicle to retrieve or examine then-existing evidence.
A GPS search does not deal with existing evidence, but with
future evidence that the police suspect could come into being.
That is a worthy goal, to be sure, but it cannot absolve law
enforcement personnel of the warrant requirement. As the
Government points out, the Supreme Courts automobile
exception decisions are based on the practicalities of the
situations presented. (Appellant Br. at 40 (quoting Ross,
456 U.S. at 807 n.9).) However, the Government seems to
overlook that the power to create an ongoing, near-invisible
police presence via a GPS tracker skews the realistic
appraisal of the . . . protection that a contrary rule would
provide from the relatively minor to the decidedly major.
(Id. (discussing protection for privacy interests).)
Additionally, we think that the pervasive regulation
of vehicles capable of traveling on the public roadways is of
no moment for purposes of the instant case. California v.
Carney, 471 U.S. 386, 392 (1985). True, such pervasive
regulation gave rise to the understanding that an individual is
accorded less privacy in [his] automobile[]. Id. Indeed,
this principle animated the Supreme Courts statement that
[e]ven in cases where an automobile was not immediately
mobile, the lesser expectation of privacy resulting from its
32
use as a readily mobile vehicle justified application of the

vehicular exception. Id. at 391. Nevertheless, we still hold
that a GPS search is sufficiently different from the type of
search sanctioned by the automobile exception jurisprudence
and that, as a consequence, even the extensive scheme of
regulation now affecting motorists does not permit the
government to dispense with asking for permission from a
neutral magistrate when seeking to physically intrude upon a
target vehicle for longer than is necessary to locate, remove,
and/or verify the presence of already-existing evidence of
criminal wrongdoing. Cf. Delaware v. Prouse, 440 U.S. 648,
662-63 (1979) (noting, in the context of Terry stops, that
[w]ere the individual subject to unfettered governmental
intrusion every time he entered an automobile, the security
guaranteed by the Fourth Amendment would be seriously
circumscribed).14
14
The Government also points to New York v. Class, 475 U.S.

106 (1986), for the proposition that a warrantless, minimally
intrusive search of a vehicle is permitted where the police
have probable cause. (Appellant Br. at 37). In Class, the
police had stopped a car for various traffic violations. After
the driver exited the vehicle of his own accord, an officer
approached the vehicle in order to copy the VIN number on
the dashboard. Finding his view obscured, the officer reached
into the car to move some papers and, in the process,
observed the handle of a gun. Inevitable results followed.
Class, 475 U.S. at 107-09. A brief look at the underlying
reasoning of Class, however, demonstrates that it is
inapposite: the Court reasoned that the brief search served
several important government needs beyond a basic interest
in law enforcement, including the governmental interest in
33
Ultimately, in executing a GPS search, the police were

not attempting to recover or ascertain the presence of
evidence already present in Harry Katzins vehicle. If they
were, the automobile exception would have sanctioned their
search in so far as it allowed them to enter Harry Katzins van
and retrieve and/or verify the presence or absence of the
sought-after evidence. It would not (and, indeed, did not)
permit them to leave behind an ever-watchful electronic
sentinel in order to collect future evidence. Were we to hold
otherwise, we would unduly expand the scope of the
automobile exception well past its specifically established
and well delineated contours, Ross, 456 U.S. at 824,
permitting the police to intrude indefinitely upon a target
vehicle based solely on the prospect that it will, in the future,
contain some contraband or be used during the commission of
a crime.
For these reasons we hold that the warrantless search
in this case was not justifiable based solely on reasonable
suspicion or probable cause, was thereby unreasonable, and
consequently violated the Fourth Amendment.
IV.
The Exclusionary Rule & the Good Faith Exception
Having held that the police were required to obtain a

warrant prior to executing their GPS search of Harry Katzins
van, we now consider whether the evidence uncovered as a
highway safety and a concern for the officers safety. Id.
at 118. Here, neither of the interests is directly served.
Accord Jones, 132 S. Ct. at 952 (holding that Class is
inapplicable to GPS searches because attaching [a] device to
the [car] may have resulted in a different outcome).
34
result of their unconstitutional actions should be suppressed.

We hold that it should.
A.
Exclusionary Rule Jurisprudence
While the Fourth Amendment protects the right of the

people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures[, it] says
nothing about suppressing evidence obtained in violation of
this command. Davis v. United States, 131 S. Ct. 2419,
2426 (2011) (internal quotation marks omitted).
Nevertheless, to compel respect for the constitutional
guaranty, the Supreme Court created the exclusionary rule.
Elkins v. United States, 364 U.S. 206, 217 (1960). The rule
mandates that evidence obtained in violation of the Fourth
Amendment should not be available at trial. Herring v.
United States, 555 U.S. 135, 139 (2009). However, that a
Fourth Amendment violation occurred . . . does not
necessarily mean that the exclusionary rule applies. Id. at
140.
As the Supreme Court has made plain, exclusion has
always been our last resort, not our first impulse. Id.
(internal quotation marks omitted). To that end, the Supreme
Court has recognized the existence of a good faith
exception to the exclusionary rule in cases where the police
act[ed] with an objectively reasonable good-faith belief that
their conduct [was] lawful. Davis, 131 S. Ct. at 2427
(internal quotation marks omitted).15 More specifically, the
15
As the Supreme Court noted in Herring, good faith

exception is somewhat of a misnomer. 555 U.S. at 142. The
inquiry is not subjective at all, but instead looks to an
officers objectively reasonable reliance. Id. Nonetheless,
35
Supreme Court has held this exception to cover situations

where law enforcement personnel have acted in objectively
reasonable reliance on some seemingly immutable authority
or information that justifies their course of action. See Davis,
131 S. Ct. 2419 (later-reversed binding appellate precedent);
Herring, 555 U.S. 135 (undiscovered error in policemaintained database); Arizona v. Evans, 514 U.S. 1 (1995)
(undiscovered error in court-maintained database); Illinois v.
Krull, 480 U.S. 340 (1987) (subsequently overturned statute);
United States v. Leon, 468 U.S. 897 (1984) (later-invalidated
warrant).
To determine whether a particular situation is covered
under this good faith exception, the Supreme Court has
directed courts to consider whether exclusion would serve to
deter future Fourth Amendment violations. Davis, 131 S.
Ct. at 2426; see also Leon, 468 U.S. at 918 (If exclusion of
evidence obtained pursuant to a subsequently invalidated
warrant is to have any deterrent effect, . . . it must alter the
behavior of individual law enforcement officers or the
policies of their departments.). Thus, in analyzing whether
the good faith exception applies, the Court balances the
benefits of the rules deterrent effects against the costs of
exclusion, which include letting guilty and possibly
dangerous defendants go free. United States v. Tracey, 597
F.3d 140, 151 (3d Cir. 2010) (quoting Herring, 555 U.S. at
141).
When considering the benefits gained from deterrence,
we must necessarily consider the nature and culpability of the
because the Supreme Court (and our own decisions) use the
terms interchangeably, we do so as well.
36
police conduct at issue. As the Supreme Court has explained,

police conduct must be sufficiently deliberate that exclusion
can meaningfully deter it, and sufficiently culpable that such
deterrence is worth the price paid by the justice system.
Herring, 555 U.S. at 144; Davis, 131 S. Ct. at 2429
(cautioning courts not to discourage the officer from doing
his duty (alteration and internal quotation marks omitted)).
Thus, we apply the rule when police conduct is deliberate,
reckless, or grossly negligent, or when it will deter recurring
or systemic negligence. Tracey, 597 F.3d at 151 (quoting
Herring, 555 U.S. at 144). On the other hand, isolated or
attenuated acts of negligence do not warrant the rules
application. Id.
In light of these principles, the Government argues that
the police conduct at issue in this case does not rise to the
level of culpability necessary for the exclusionary rule to
apply and that, as a consequence, the balancing test outlined
in Herring and Davis militates in favor of applying the good
faith exception. In service of its argument, the Government
urges that the police acted with an objectively reasonable
good faith belief that their conduct was constitutional because
[b]efore Jones, every court of appeals to consider the
question[, with the exception of one,] had concluded that, in
light of the Supreme Courts decision in [Knotts], police did
not need to obtain a warrant to install a GPS tracking device
on the exterior of a vehicle or to use that device to monitor
the vehicles movements on public roads. (Appellant Br. at
48-49.) Indeed, the Government posits that this consensus
among our sister circuits, coupled with the guidance in
Knotts and Katz, absolves law enforcement personnel for
purposes of the exclusionary rule. (Id. at 50, 55 n.21; Oral
Argument Tr. at 23.) We find the Governments position
37
unpersuasive and therefore hold that the good faith exception

does not apply here.
B.
Reliance on Beeper Cases
The Government posits that law enforcement

personnel acted in good faith because they relied on, among
other things, the Supreme Courts guidance from Knotts
that using an electronic tracking device does not violate the
Fourth Amendment. (Appellant Br. at 55 n.21.) Indeed, the
Government observes that the reasoning from Knotts
underpins the decision of every court of appeals to consider
GPS tracking (save the D.C. Circuit). (Id. at 48-49.) We first
ask ourselves, therefore, whether the Knotts decision along
with its sibling case, Karo qualifies as binding precedent
under Davis v. United States, wherein the Supreme Court held
that the good faith exception covers police officers acting in
reliance on later-invalidated binding appellate precedent. 131
S. Ct. 2419. As the forthcoming discussion demonstrates, we
find that the explicit holding from Davis is inapposite because
Knotts and Karo are both distinguishable given (1) the lack of
a physical intrusion in those cases, (2) the placement by
police of the beepers inside containers, and (3) the marked
technological differences between beepers and GPS trackers.
In Davis, the police had executed a search of the
defendants car subsequent to his arrest. At the time of the
search, prevailing Supreme Court and Eleventh Circuit
precedent held that the police could lawfully search a
suspects car incident to his arrest. See New York v. Belton,
453 U.S. 454 (1981); United States v. Gonzalez, 71 F.3d 819
(11th Cir. 1996). The defendant unsuccessfully challenged
the search. While the defendants appeal was pending, the
Supreme Court limited Belton, effectively restricting the areas
38
of the car that the police were allowed to search after a

suspects arrest. See Arizona v. Gant, 556 U.S. 332 (2009).
In deciding Davis, the Supreme Court reasoned that
[r]esponsible law-enforcement officers will take care to learn
what is required of them under Fourth Amendment precedent
and will conform their conduct to these rules. 131 S. Ct. at
2429 (internal quotation marks omitted). According to the
Court, the police in Davis merely behaved as reasonable
officer[s] would and should act. Id. (internal quotation
marks omitted). Consequently, the Court found that [t]he
deterrent effect of exclusion in such a case can only be to
discourage the officer from do[ing] his duty, which was not
the kind of deterrence the exclusionary rule seeks to foster.
Id. (internal quotation marks omitted). Ultimately, therefore,
the Court deemed that the police in Davis were covered by
the good faith exception to the exclusionary rule and evidence
recovered pursuant to the search was not suppressed. Id.
Of great significance to the instant case is the fact that
in Davis the police relied on binding appellate precedent that
specifically authorize[d the] particular police practice. Id.
at 2429 (first emphasis added). Indeed, as Justice Sotomayor
noted in her concurrence, Davis did not present the markedly
different question whether the exclusionary rule applies when
the law governing the constitutionality of a particular search
is unsettled. Id. at 2435 (Sotomayor, J., concurring).16 By
16
We also note that the Eleventh Circuits opinion in Davis

was explicit on this point: [We refuse] to apply the
exclusionary rule when the police have reasonably relied on
clear and well-settled precedent. We stress, however, that
our precedent on a given point must be unequivocal before
we will suspend the exclusionary rules operation. United
39
its plain terms, therefore, the express holding in Davis is

inapposite to this case because Knotts and Karo do not
qualify as appropriate binding appellate precedent: Neither
case involved a physical trespass onto the target vehicle; in
both cases the police placed the beeper inside of a container
which was then loaded into the target vehicle by the driver
(all with the container owners permission). See Karo, 468
U.S. at 708; Knotts, 460 U.S. at 278. Additionally, both Karo
and Knotts addressed the use of beepers, which as we have
already explained are markedly different from GPS
trackers. See Maynard, 615 F.3d at 556-57.
Davis extends good faith protection only to acts that
are explicitly sanctioned by clear and well-settled precedent,
and neither Knotts nor Karo sanction the type of intrusion at
issue in this case.
Consequently, we hold that law
enforcements reliance on the beeper cases, standing on its
own, cannot sufficiently insulates the GPS search in this case
from the exclusionary rule.
States v. Davis, 598 F.3d 1259, 1266 (11th Cir. 2010)
(citations omitted) (emphasis added); see also United States v.
Buford, 632 F.3d 264, 276 n.9 (6th Cir. 2011) (Like the
Eleventh Circuit, we also stress, however, that our precedent
on a given point must be unequivocal before we will suspend
the exclusionary rules operation. (quoting Davis, 598 F.3d
at 1266)); United States v. McCane, 573 F.3d 1037, 1045 n.6
(10th Cir. 2009) (finding that the good faith exception applied
because Tenth Circuit jurisprudence supporting the search
was settled. Thus, there was no risk that law enforcement
officers would engage in the type of complex legal research
and analysis better left to the judiciary and members of the
bar).
40
C.
Reliance on Out-of-Circuit GPS Cases
We therefore consider the Governments contention

that the good faith exception applies because the police acted
in objectively reasonable reliance on out-of-circuit precedent
sanctioning warrantless GPS surveillance. (Appellant Br. at
15-16 (Before [Jones], all but one of the courts of appeals to
have addressed the issue had approved the warrantless
installation and monitoring of a GPS device on a vehicle. . . .
[T]he agents reliance on this body of case law was
objectively reasonable . . . .).) And while the Government
relies, in no small part, on the reasoning in Davis for support,
we think that reading Davis so broadly would strain its
reasoning, to say nothing of its holding.17
17
We note that the majority in Davis itself suggested that its

holding is inapplicable to the situation presented in this case.
While explaining that its ruling will not deter defendants from
challenging existing Fourth Amendment doctrine, the
Supreme Court noted:
This Court reviews criminal convictions from 12 Federal
Courts of Appeals, 50 state courts of last resort, and the
District of Columbia Court of Appeals. If one or even many
of these courts uphold a particular type of search or seizure,
defendants in jurisdictions in which the question remains
open will still have an undiminished incentive to litigate the
issue.
This Court can then grant certiorari, and the
development of Fourth Amendment law will in no way be
stunted.
41
The Davis decision hinged on the understanding that

[r]esponsible law-enforcement officers will take care to learn
what is required of them under Fourth Amendment precedent
and will conform their conduct to these rules. Id. (internal
quotation marks omitted). At the most basic level, then, the
applicable body of Fourth Amendment precedent to which
the responsible officer must conform consists of those
decisions that are binding on the officers jurisdiction.
Accord Hudson v. Michigan, 547 U.S. 586, 599 (2006)
(noting that officers are expected to learn and abide by what
is required of them by courts having jurisdiction over them).
Thus, as already stated, the Court in Davis recognized
that the good faith exception applies to situations where the
police conducted a search in objectively reasonable reliance
on binding appellate precedent, 131 S. Ct. at 2434, because
[t]he deterrent effect . . . in such a case can only be to
discourage the officer from do[ing] his duty, which was not
the kind of deterrence the exclusionary rule seeks to foster,
id. at 2429 (internal quotation marks omitted). The same
cannot be said where the law is unsettled in a particular
jurisdiction, even where persuasive authority may exist in the
form of decisions by other circuit courts.
Indeed, extending the rationale from Davis to cover
reliance on out-of-circuit precedent would turn this principle
on its head: Though our first and last word on the matter is
that warrantless GPS searches are unconstitutional, in effect
the Government argues that our sister circuits decisions
Davis, 131 S. Ct. at 2433 (emphasis added) (footnote
omitted). Thus, the Court in Davis recognized that its holding
was limited to jurisdictions where the law was clearly settled.
42
should control whether the evidence is excluded. This rule

would eviscerate the notion that clear and well-settled
precedent should control and thus contradicts the basic
principles of stare decisis. We respect our sister circuits, but
their decisions cannot dictate our conclusions. As such, any
law enforcement officer who acts primarily in reliance on the
Fourth Amendment proclamations of our sister circuits does
so at his own peril for purposes of the exclusionary rule.
This is particularly true where, as in this case, our
sister circuits are split on the relevant issue. The GPS search
of Harry Katzins van occurred in late 2010. By that time,
four of our sister circuits the Seventh, Eighth, Ninth, and
D.C. Circuits had addressed GPS surveillance. Of those,
three circuits had held that GPS surveillance either did not
constitute a search or, even if it did, that the police did not
require a warrant. See McIver, 186 F.3d 1119; Garcia, 474
F.3d 994; Pineda-Moreno, 591 F.3d 1212; Marquez, 605 F.3d
604.
At the same time, the D.C. Circuit had held in United
States v. Maynard (which became Jones on appeal to the
Supreme Court) that GPS surveillance did constitute a search
and that the police did require a warrant. Maynard, 615 F.3d
544. At bottom, then, the Government seems to argue that
reliance on a majority of a minority of our sister circuits is
sufficient to escape the exclusionary rule. This cannot be.
Although we find it commendable that law enforcement
personnel would take the time to pore over out-of-circuit
decisions relating to police procedures, it is not their duty for
purposes of the exclusionary rule to parse and weigh the
decisions of our sister circuits in an attempt to predict what
43
this Court (or even the Supreme Court) would say if faced
with a similar case.18
18
The Government urges that our analysis in United States v.

Duka, 671 F.3d 329, 347 (3d Cir. 2011) (addressing evidence
obtained in a search pursuant to the Foreign Intelligent
Surveillance Act (FISA)), supports the proposition that the
reasoning from Davis is not limited to binding precedent.
(Appellant Br. at 61-62 ([The] insistence on binding
authority does not accord with this Courts approach
following Davis. . . . [Duka] undermines the district courts
position that reliance on non-binding case law . . . is per se
unreasonable.).) This is not correct. Not only was the good
faith discussion in Duka based on a different Supreme Court
decision Krull, which addressed objectively reasonable
reliance on a later-invalidated statute but the entire
discussion of the good faith exception is dicta. See Duka, 671
F.3d at 346 (discussing the good faith exception only after
noting that [w]e are confident that FISAs significant
purpose test satisfies the Fourth Amendment). Moreover,
the Governments argument seems to hinge on a footnote that
contains the opinions lone citation to Davis. In that footnote,
this Court stated that [t]he objective reasonableness of the
officers reliance on the statute in this case is further bolstered
by the fact that the particular provision at issue has been
reviewed and declared constitutional by several courts, going
as far back as 2002. Id. at 347 n.12 (collecting cases). Since
none of these several courts are the Third Circuit, the
Government argues, Duka demonstrates our willingness to
apply the rationale from Davis to non-binding authority. We
think this makes a mountain out of a molehill: this single
44
Moreover, we cannot burden district courts with the

type of case-by-case assessment that the Governments
position would require. Unlike the archetypal situations in
Leon or Davis, finding that the good faith exception applies in
this case would, of necessity, require courts ruling on
suppression motions to discern what amounts to sufficient
out-of-circuit authority for purposes of an objectively
reasonable good faith belief. Thus, district courts would need
to consider how many circuits had addressed the police
practice in question, what each one had said, whether the
statements were mere dicta, and myriad other factors. Such
an approach has no limiting principle and defies rational
application. Surely police reliance on a single out-of-circuit
decision could not support good faith, but what about two? If
the circuits split two-to-one, that would present yet another
problem. And what if our sister courts had all ruled in nearunanimity on a point, with one stalwart (perhaps, highly
persuasive) holdout? Is the presence of good faith to be
decided with an abacus or does the strength of each courts
argument bear consideration? Because we foresee that it
could lead to a sprawling, amorphous, and self-contradicting
doctrine, we decline to adopt the Governments position and
hold that reliance on out-of-circuit precedent (even where
there is a so-called consensus) cannot, in and of itself,
support application of the good faith exception.19
reference to Davis comes in dicta, in a footnote, as part of a
cf. citation.
19
To see just how unwieldy the analysis could be, we need

look no further than the Governments own arguments in this
case. At oral argument, the Government attempted to
minimize the significance of Maynard, suggesting that this
45
D.
Exclusion based on Culpability and Deterrence
Up to this point we have considered only whether

reliance by law enforcement personnel on out-of-circuit or
distinguishable authority, by itself, suffices for purposes of
the good faith exception. Per the previous discussion, we
hold that such reliance is insufficient to support a per se
finding of good faith.20 The Supreme Court in Herring and
single decision had come too late in the process and was,
ultimately, distinguishable.
Such arguments would be
disastrously disruptive to lower courts if we were to hold that
reliance on out-of-circuit authority could, by itself, suffice for
purposes of the good faith exception. How up-to-date must
law enforcement be regarding the state of relevant legal
principles? What if a decision were issued but either (a) was
late in being added to a reporter/electronic database or (b) did
not get sufficiently wide-spread exposure to bring it to the
attention of police departments half-way across the country?
Not only would district courts be forced to tally the
authorities on either side of an issue like so many chit marks,
but they would also have to decide whether decisions had
come too late, or were perhaps too obscure.
20
We note that some of our sister circuits have ruled

otherwise, holding that, per Davis, pre-Jones warrantless GPS
searches qualify for protection under the good faith exception.
See United States v. Sparks, 711 F.3d 58 (1st Cir. 2013);
United States v. Andres, 703 F.3d 828 (5th Cir. 2013); United
States v. Pineda-Moreno, 688 F.3d 1087 (9th Cir. 2012).
These cases, however, do not deter us from our conclusion.
To begin with, all three courts relied on binding precedent
within their own circuits. The Ninth Circuit noted that the
46
police could rely on, among other things, McIver for the
proposition that placing an electronic tracking device on the
undercarriage of a car was neither a search nor a seizure
under the Fourth Amendment. Pineda-Moreno, 688 F.3d at
1090. The Fifth Circuit, which devoted a single paragraph to
the discussion, based its conclusion on the presence of
Michael, and its holding that reasonable suspicion is
adequate to support warrantless beeper installation on a
suspects vehicle parked in a public space. Andres, 703 F.3d
at 835 (quoting Michael, 645 F.2d at 257). Finally, the First
Circuit based its decision to apply the good faith exception on
the presence of clear and apposite authority, including a
First Circuit decision that found the lessened expectancy of
privacy associated with motor vehicles justifies the use of
beepers without a warrant to track vehicles . . . only if the
officers have probable cause at the time. Sparks, 711 F.3d
at 65 (quoting United States v. Moore, 562 F.2d 106, 112-13
(1st Cir. 1977)). At the same time, however, the First Circuit
was far from certain that out-of-circuit precedent could
support a finding of good faith, noting that the two appellate
courts to consider the question since Davis have read Davis to
require reliance on the case law of the jurisdiction. Id. at 6364 & 63 n.2 (internal quotation marks omitted).
Moreover, both the First and Fifth Circuits based their good
faith exception determinations on cases dealing with beepers,
with the First Circuit in Sparks going so far as to hold that
Knotts was sufficiently clear and apposite so as to support a
finding of good faith. Sparks, 711 F.3d at 65. As our
foregoing discussion suggests: we disagree with this position.
The difference between beepers and GPS trackers is one of
kind, not degree. Any time technology shifts in this way,
47
Davis, however, recognized that the good faith exception

inquiry requires more. That is, in determining whether law
enforcement personnel acted with an objectively reasonable
good-faith belief that their conduct [was] lawful, we must
consider whether the totality of circumstances is greater than
the sum of its attendant parts. See Davis, 131 S. Ct. at 2427
(quoting Leon, 468 U.S. at 909). We therefore undertake the
balancing test outlined in Herring and Davis, and ask whether
in light of all the circumstances the police activity in
this case rises to the level of a deliberate, reckless, or grossly
negligent violation of the Fourth Amendment. See Herring,
555 U.S. at 144; Tracey, 597 F.3d at 151. We hold that it
does.
Per the Governments argument, the legal landscape in
this case predominantly consisted of the out-of-circuit GPS
cases, the Supreme Courts beeper decisions, and the
overarching privacy expectation framework for Fourth
Amendment analysis adopted in Katz and deemed to be the
sole rubric for analysis until Jones.21 (See, e.g., Appellant Br.
courts should expect that law enforcement will tread lightly
and will refrain from reasoning by (potentially ill-fitting)
analogy. Cf. Kyllo v. United States, 533 U.S. 27, 35-36
(2001) (discussing the Courts reticence to leave the
homeowner at the mercy of advancing technology).
21
Our dissenting colleague points to a number of other

decisions and Fourth Amendment doctrines which add further
sauce to the Governments good faith goose. (See Dissent at
20-29 (discussing, for example, privacy considerations in the
exterior of an automobile).) While we do not disagree that
these too were part of the relevant legal landscape at the time
the police executed their search, we nevertheless hold that
48
at 44, 50, 55 n.21; Oral Argument Tr. at 23.) Taken together,

the Government contends, these sources of legal authority
would lead a reasonable law enforcement officer to conclude
that he was acting within the confines of the constitution
when attaching a GPS tracker to the undercarriage of Harry
Katzins van. We find that, on balance, this collection of
authority does not warrant applying the good faith exception.
Try as we might to allay our concerns, we remain supremely
discomfited by the lack of binding appellate guidance
underlying the police action at issue in this case. Therefore,
we hold that the police acted with sufficient constitutional
culpability to require exclusion and, more importantly, that
suppression in this case would help deter future Fourth
Amendment violations.
Law enforcement personnel can rightly rely on a
number of sources for Fourth Amendment guidance
including on-point decisions by the Supreme Court and this
Circuit, warrants, and statutes. We, both as a Court and as a
society, expect that law enforcement officers will consult
in light of our forthcoming discussion such authority gets
further and further afield of the relevant police conduct and
could only supply marginal support to justify the police
action.
The only possible exception is the advisory
commentary on Federal Rule of Criminal Procedure 41.
(Dissent at 32.) However, for the reasons articulated below,
see infra note 24, we find that this commentary would not
help the Governments position even assuming the
Government had seen fit to cite (let alone mention) the
language in its briefs or at oral argument.
49
these sources it is a part of how we expect reasonable

officers to act. Davis, 131 S. Ct. at 2429. Deterring such
activity, therefore, would not serve the purposes of the
exclusionary rule. Id. This case, as we have just mentioned,
is different. Nothing in a law enforcement officers duties
forces him to either rely on non-binding precedent or to
conduct the Fourth Amendment calculus himself by
extrapolating from, or analogizing to, existing case law.
Where an officer decides to take the Fourth Amendment
inquiry into his own hands, rather than to seek a warrant from
a neutral magistrate particularly where the law is as far
from settled as it was in this case he acts in a
constitutionally reckless fashion.
Here, law enforcement personnel made a deliberate
decision to forego securing a warrant before attaching a GPS
device directly to a target vehicle in the absence of binding
Fourth Amendment precedent authorizing such a practice.
Indeed, the police embarked on a long-term surveillance
project using technology that allowed them to monitor a
target vehicles movements using only a laptop, all before
either this Circuit or the Supreme Court had spoken on the
constitutional propriety of such an endeavor. (That the
surveillance lasted only a few days is mere coincidence.22)
22
We therefore reject the Governments attempts to

distinguish Maynard. While it is true that the surveillance in
Maynard lasted for nearly a month as compared to the several
days in this case, it remains equally true that when the police
attached their GPS device to Harry Katzins van, they had no
way of knowing when the next Rite Aid robbery would take
place. We likewise disagree with our Dissenting colleagues
assessment of Maynard. (Dissent at 29-31.) The good faith
50
True, the police did not act in a total vacuum, but their chosen
course of action when presented with such a novel
constitutional situation is nonetheless troubling: In lieu of a
binding proclamation from either this Circuit or the Supreme
Court and instead of seeking approval from a neutral
magistrate law enforcement personnel looked to other
(non-binding or distinguishable) authorities like our sister
circuits decisions. Essentially, they extrapolated their own
constitutional rule and applied it to this case. We fail to see
how this absolves their behavior. The assumption by law
enforcement personnel that their own self-derived rule
sanctioned their conduct to say nothing of their unstated
belief that this Circuit would automatically side with a
majority of the minority of our sister circuits was
constitutionally culpable.23
exception analysis cannot be post-hoc, and the police action
at issue must be analyzed under the circumstances as they
existed at the time the action was taken in this case, before
the police knew when their GPS surveillance would end.
23
The Government suggests that the good faith exception

should apply because the police sought confirmation from
experienced government attorneys. (Appellant Br. at 56.)
The Government cites Messerschmidt v. Millender, 132 S. Ct.
1235 (2012), for the proposition that it shows good faith on
the part of an officer if he obtains approval of the warrant
application from a superior and a prosecutor before
submitting it to a magistrate. (Appellant Br. at 57.)
However, Messerschmidt is inapposite. That case considered
good faith in the context of an officer relying on a warrant
that had been based on an allegedly paltry affidavit. Thus, the
opinion of a third party tended to demonstrate that the officer
51
The decisions in Knotts and Katz do not remedy the

situation. The Government suggests that in this case law
enforcement personnel properly reasoned that the GPS search
did not require a warrant by analogizing to Knotts discussion
of electronic tracking devices. Doing so, the Government
adds, was imminently reasonable given the prevailing Fourth
Amendment framework at the time the privacy theory
from Katz. That is, the Government contends that because
law enforcement personnel were aware that a search occurs
when the police intrude upon a targets reasonable
expectation of privacy, they acted in good faith by relying on
our sister circuits GPS decisions as well as Knotts statement
that, among other things, [a] person travelling in an
automobile on public thoroughfares has no reasonable
another. Knotts, 460 U.S. at 281. We find such reasoning
had not acted with knowledge of the affidavits deficiency. In
the instant case, the police lack even an affidavit. Moreover,
a government attorneys approval, standing alone, cannot and
should not suffice to demonstrate good faith. Cf. Leon, 468
U.S. at 914 ([T]he courts must also insist that the magistrate
purport to perform his neutral and detached function and not
serve merely as a rubber stamp for the police. . . . [A
magistrate] who acts instead as an adjunct law enforcement
officer cannot provide valid authorization for an otherwise
unconstitutional search. (internal quotation marks omitted)).
Thus, while we agree that it is another factor to consider,
(Oral Argument Tr. at 51-52; Dissent at 33), we nonetheless
hold that, in this case, seeking the advice of a government
attorney[] does not offer much support to the Governments
position.
52
dangerous for the reasons already articulated above: Law

enforcement can always derive some constitutional principle
from existing decisions which is particularly true when
they also look directly to a generalized baseline case like
Katz. It cannot be that the good faith exception applies in
every instance when the police act in reliance on such a selfderived principle. If it did, then all Fourth Amendment
protections would be rendered ineffective the police could
intrude upon anyones Fourth Amendment rights without fear
of suppression merely by relying on a particularly broadsweeping, self-derived constitutional principle. We fear that
accepting the Governments position, in effect, would lead to
the good faith exception swallowing the exclusionary rule.24
24
The Dissent argues that Federal Rule of Criminal Procedure

41 particularly the 2006 advisory committee notes to that
rule further supports a finding that the law enforcement
officers in this case acted with an objectively good faith belief
that their conduct was constitutional. (Dissent at 32.) In
particular, the Dissent points to the following language from
the 2006 advisory committee notes: If . . . the officers intend
to install and use [a tracking device] without implicating any
Fourth Amendment rights, there is no need to obtain a
warrant. Fed. R. Crim. P. 41(b) advisory committees note
(2006) (citing Knotts, 460 U.S. 276). This language,
however, stands for nothing more than the unremarkable
proposition that the police need not obtain a warrant if their
action does not violate the Fourth Amendment. Without our
(or the Supreme Courts) having ruled on the matter,
however, the police could not reasonably say that the use of a
GPS tracker would not implicat[e] . . . Fourth Amendment
rights. Indeed, even under the most generous rationale, this
53
Moreover, since such constitutionally reckless action

was the Governments default choice in this case, we hold
that applying the exclusionary rule aptly serves its intended
purpose: to deter future Fourth Amendment violations.
Davis, 131 S. Ct. at 2426; see also id. at 2435 (Sotomayor, J.,
concurring) ([W]hen police decide to conduct a search or
seizure in the absence of case law (or other authority)
specifically sanctioning such action, exclusion of the
evidence obtained may deter Fourth Amendment
violations . . . .). The police practice at issue here effectively
disregarded the possibility that we could find a GPS search to
constitute a Fourth Amendment violation requiring a warrant.
But a Fourth Amendment violation is a Fourth Amendment
violation. While the police may feel free to act with
impunity, confident in the illusory protection of non-binding
precedent, each search could still be violating the
Constitution. Thus, where we have not yet ruled on the
constitutionality of a police tactic, law enforcement personnel
have two choices: (a) assume that their conduct violates the
Fourth Amendment and that we will require them to obtain a
warrant, or (b) gamble, at the risk of having evidence
excluded, that we will find no Fourth Amendment violation in
language could only have favored the Governments
argument if the GPS search occurred prior to the Maynard
decision (i.e., before any circuit had suggested that GPS
searches violated the Fourth Amendment). However, once
the circuits split on the issue of whether using a GPS tracker
constitutes a search, law enforcement officials were on notice
that such devices could implicat[e] . . . Fourth Amendment
rights and the commentary became borderline irrelevant for
good faith purposes.
54
a particular situation.25 This is in line with the Supreme

Courts suggestion that law enforcement officials should be
incentivized to err on the side of constitutional behavior.
United States v. Johnson, 457 U.S. 537, 561 (1982).26
25
We do not hold, of course, that the police can never make

assumptions about our future Fourth Amendment rulings. We
merely hold that where law enforcement personnel choose to
take the constitutional analysis into their own hands, they
effectively do so without a safety net: If their analysis is
correct and we ultimately affirm the constitutionality of a
search, then the police are rewarded with full use of any
evidence derived from the search. If their analysis is wrong,
however, and the search is ultimately held to be
unconstitutional, then the police cannot avoid the cost of
suppression by relying on the good faith exception. Just as
the police enjoy the benefits when they are correct, so, too, do
they bear the costs when they are wrong. Of course, the
police can avoid this entire issue by requesting a warrant in
the first instance.
26
Johnson addressed retroactive application of Fourth

Amendment decisions. In discussing the matter, the Court
stated:
If, as the Government argues, all rulings resolving unsettled
Fourth Amendment questions should be nonretroactive, then,
in close cases, law enforcement officials would have little
incentive to err on the side of constitutional behavior.
Official awareness of the dubious constitutionality of a
practice would be counterbalanced by official certainty that,
so long as the Fourth Amendment law in the area remained
unsettled, evidence obtained through the questionable practice
would be excluded only in the one case definitively resolving
55
Excluding the evidence in this case would incentivize just that

and would therefore result in appreciable deterrence of
future Fourth Amendment violations. Leon, 468 U.S. at 909
(internal quotation marks omitted).
Thus, heeding the Supreme Courts views in Herring
and Davis, and after considering the Governments various
arguments, we find that the deterrent effect of suppression
[in this case is] substantial and outweigh[s] any harm to the
justice system. Herring, 555 U.S. at 147. The police acted
in the face of unsettled law at a time when courts were
becoming more attuned to the argument that warrantless GPS
surveillance violated the Fourth Amendment. Excluding the
evidence here will incentivize the police to err on the side of
constitutional behavior and help prevent future Fourth
Amendment violations. We therefore conclude that the police
actions taken here do not qualify under the good faith
exception and hold that the exclusionary rule should apply in
this case.27
the unsettled question. Failure to accord any retroactive

effect to Fourth Amendment rulings would encourage police
or other courts to disregard the plain purport of our decisions
and to adopt a lets-wait-until-its-decided approach.
Johnson, 457 U.S. at 561 (footnote and internal quotation
marks omitted).
27
It bears noting that we do not deal here with a situation

where some on-point binding precedent exists. That is, we
are not presented with a case wherein law enforcement
personnel were asked to apply on-point binding appellate law
to a new factual scenario. Indeed, we recognize that applying
56
V.
STANDING AND THE KATZIN BROTHERS
Fourth Amendment rights are personal rights, and a

defendant seeking to suppress evidence must therefore
demonstrate a violation of his own Fourth Amendment rights
before he can be granted any form of relief. See Minnesota v.
Carter, 525 U.S. 83, 88 (1998); United States v. Mosley, 454
F.3d 249, 253 (3d Cir. 2006). Thus, having held that the
District Court rightly suppressed the evidence found in Harry
Katzins van, we must now consider whether all three of the
brothers had standing to challenge the admissibility of this
evidence. The Government would have us divide the stop
into two distinct incidents: (1) the stop of Harry Katzin and
(2) the stop of Mark and Michael Katzin, with each stop
presenting a different constitutional situation. For the reasons
discussed below, we hold that the stop of Harry Katzins van
must be treated as a single incident implicating the Fourth
Amendment rights of all three brothers and, consequently, we
find that all three had standing.
existing precedential frameworks to subtle factual

permutations is something that police officers and other
law enforcement personnel do all the time. We have no
occasion (or desire) to curtail such practices in this opinion.
Thus, for example, we do not purport to limit the ability of an
officer to decide whether a particular situation gives rise to
exigent circumstances while standing outside an apartment
door with suspicious sounds emanating from within. Such a
case could lead to a different outcome under the Herring and
Davis balancing test given that, unlike here, the officer would
not be leaping recklessly into an unexplored constitutional
situation.
57
We begin by stating the obvious: There is not, nor can

there be, any dispute as to whether Harry Katzin as the
owner of the van has standing to challenge the
constitutionality of the GPS search as well as the stop and
subsequent search of his van, and to seek suppression of any
evidence discovered within the vehicle.
Indeed, the
Government concedes as much. (Appellant Br. at 69.)
Certainly, then, the District Court rightly suppressed the
evidence as against Harry Katzin.
The Government does challenge the standing of Mark
and Michael Katzin. (Id. at 67-74.) Since a search of a car
does not implicate the rights of non-owner passengers, the
Government contends that such passengers are generally
held to lack standing to object to evidence discovered in a
search of a vehicle. Mosley, 454 F.3d at 253 (citing Rakas v.
Illinois, 439 U.S. 128, 147 (1978)). This much is true.
However, we have also held that when a vehicle is illegally
stopped by the police, no evidence found during the stop may
be used by the government against any occupant of the
vehicle unless the government can show that the taint of the
illegal stop was purged. Id. at 251.28
28
We explicitly noted in Mosley that courts should not be

distracted by the fact that this case involves evidence found in
a car. Mosley, 454 F.3d at 253. As Mosley explained, the
constitutional violation stems not from the search of the car .
. . [but] the seizure of [the passenger]. Id. at 253 & n.6 ([A]
Fourth Amendment seizure of every occupant occurs the
moment that vehicle is pulled over by the police.) The same
is true of the case at bar: while the police did search Harry
Katzins van, this was done only after pulling the van to the
side of the road, thereby seizing all three brothers.
58
This Court in United States v. Mosley considered the

illegal stop and subsequent search of a vehicle carrying three
individuals, during the course of which the police discovered
several firearms from the car. We held that the stop and
subsequent search of the car was to be treated as a single
event, thereby rejecting an approach that would split the
inquiry between several individual constitutional violations,
each with [its own] victim, each of whom may seek to
suppress only the fruits of the violation of his individual
rights. Id. at 257-58. In part, this conclusion was
occasioned by our holding that [t]he relationship between
the seizure of a passenger in a moving vehicle, which
necessarily occurs when that vehicle is stopped by the police,
and the subsequent discovery of evidence during that stop, is
one of ineluctable and undeniable correlation. Id. at 266.
Additionally, while we acknowledged that Fourth
Amendment rights are personal rights, we also expressly
rejected blind adherence to a phrase which at most has
superficial clarity and which conceals underneath that thin
veneer all of the problems of line drawing which must be
faced in any conscientious effort to apply the Fourth
Amendment. Id. at 267 (quoting Rakas, 439 U.S. at 147).
In light of our decision in Mosley, Mark and Michael Katzin
argue that they have standing to challenge the admissibility of
evidence seized from Harry Katzins van by virtue of being
subjected to an illegal stop that thereby rendered any evidence
discovered in Harry Katzins van fruit of the poisonous tree.
Id. at 256 (Where the traffic stop itself is illegal, it is simply
impossible for the police to obtain the challenged evidence
without violating the passengers Fourth Amendment rights.)
We agree.29
29
It bears noting that Mark and Michael Katzin challenge the
59
True, precedent exists to support the proposition that

an individual cannot challenge the legality of a search which
was executed based on information obtained as a
consequence of some illegal search or seizure of a third party.
See, e.g., United States v. Chase, 692 F.2d 69, 70-71 (9th Cir.
1982).
Such holdings are premised on the principle
underlying the Governments position: Fourth Amendment
rights are personal and may be enforced by exclusion of
evidence only by one whose own legal rights and interests
were infringed by the search and seizure. Id. (discussing
Rakas v. Illinois, 439 U.S. 128). The presence of Mosley,
however, alters this analysis.
The Government effectively contends that we must
treat the stop of Harry Katzins van as constituting two stops:
The first, a stop (i.e., seizure) of Harry Katzin himself as a
result of the GPS search. The second, a stop of Mark and
Michael Katzin based on the probable cause developed
through use of information derived from the GPS search. The
Government would have us evaluate the legality and
attendant Fourth Amendment consequences (if any) of each
stop individually. We rejected this individualized approach in
Mosley, holding instead that an illegal traffic stop of a car
occupied by a driver and a passenger [constitutes] a single
constitutional violation, with [multiple] victims, each of
whom can seek to suppress all fruits of that violation.
Mosley, 454 F.3d at 257-58; id. at 267 (It defies common
stop of Harry Katzins van, not the GPS search itself. That in
the course of challenging the stop this Court must necessarily
consider the constitutionality of the GPS search is merely
incidental: Mark and Michael seek to vindicate their own
rights, not those of their brother.
60
sense and common experience to transmute one action into

three, and we will not endorse a Fourth Amendment approach
that relies on such a transmutation.) In effect, then, the
illegality of the stop as it related to Harry Katzin is extended
to his brothers (passengers). Consequently, we hold that
Mark and Michael had standing to contest the stop and that
the District Court rightly suppressed the evidence as to all
three brothers.
VI.
CONCLUSION
For the reasons discussed above, we will affirm the

District Courts suppression of evidence discovered inside of
Harry Katzins van.
61
VAN ANTWERPEN, Circuit Judge, concurring in part and

dissenting in part.
To briefly recap: In December 2010, law enforcement
officers, after consulting an Assistant United States Attorney,
and in accord with the general policy of the United States
Department of Justice, magnetically attached an
independently battery operated slap on Global Positioning
System device (GPS device or GPS) upon the
undercarriage of Harry Katzins vehicle, while that vehicle
was parked on a public street. It was conceded at argument
that the officers had probable cause to do so, although they
did not obtain a warrant. For two days, law enforcement used
that GPS to track the vehicles whereabouts on public roads.
The vehicle never entered a private garage, never entered the
curtilage of a home, nor did it enter a similarly private area.
The information from that GPS then led to the seizure of
evidence and the arrest of Harry Katzin and his two brothers,
due to their involvement in a major ongoing scheme to steal
drugs from Rite Aid pharmacies.
At that time, the Supreme Court, in cases involving
electronic beepers in vehicles, had held that [a] person
traveling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one
place to another. United States v. Knotts, 460 U.S. 276, 281
(1983); see also United States v. Karo, 468 U.S. 705, 71316
(1984). All but one of the United States Court of Appeals to
have addressed the issue, in light of Knotts, Karo, and other
general Fourth Amendment principles, held that GPS or
similar electronic surveillance (GPS-like device or GPSlike) could be conducted in the same way that occurred here:
without an authorizing warrant. This view was reflected in
then-current Rule 41(b) of the Federal Rules of Criminal

Procedure, the commentary to which stated that a warrant was
not required to conduct electronic vehicle surveillance [i]f . .
. the officers intend to install and use [an electronic
surveillance] device without implicating any Fourth
Amendment rights. FED. R. CRIM. P. 41(b) advisory comm.
note (2006). No decision from our Circuit was on point.
Then came United States v. Jones, 565 U.S. __, 132 S. Ct.
945 (2012).
In light of the Supreme Courts decision in Jones, and
for the reasons discussed in the majority opinion, I agree that
the Fourth Amendment now requires law enforcement
officers to obtain a warrant, issued upon probable cause,
before they install a GPS or a GPS-like device on a persons
automobile, or other mobile property, and thereafter use that
device to conduct continuing surveillance. See Majority
Opinion (Maj. Op.) at 18.1
I disagree, however, with the majoritys conclusion
that the District Court was correct to suppress the evidence
obtained as a result of the warrantless GPS installation and
subsequent surveillance. See Maj. Op. at 3456. Given preJones Supreme Court precedent, the consensus regarding
GPS and GPS-like use across the federal courts, and other
relevant considerations, I would hold that the law
enforcement officers here acted with an objectively
reasonable good-faith belief that their conduct [was]
1
I also agree with the majority that, under our decision

in United States v. Mosely, 454 F.3d 249 (3d Cir. 2006), each
of the Katzin brothers has standing to seek suppression of the
evidence obtained from Harry Katzins vehicle.
lawful. Davis v. United States, 564 U.S. __, 131 S. Ct. 2419,
2427 (2011) (quoting United States v. Leon, 468 U.S. 897,
909 (1984)). For that reason, suppression in this case is
unwarranted, and I would reverse the District Court.
I.
It is indisputable that the installation and use of the
GPS device in this case was a search under the Fourth
Amendment. See Jones, 132 S. Ct. at 949. Furthermore, I
agree with the majority that this particular search now
requires a warrant, and that because the law enforcement
officers here acted without a warrant a violation of the Fourth
Amendment occurred.
But [t]he fact that a Fourth
Amendment violation occurred . . . does not necessarily mean
that the exclusionary rule applies. Herring v. United States,
555 U.S. 135, 140 (2009); United States v. Tracey, 597 F.3d
140, 151 (3d Cir. 2010). See also Illinois v. Gates, 462 U.S.
213, 223 (1983) ([W]hether the exclusionary rules remedy
is appropriate in a particular context has long been regarded
as an issue separate from the question whether the Fourth
Amendment rights of the party seeking to invoke the rule
were violated by police conduct.).
The exclusionary rule is a prudential doctrine,
Davis, 131 S. Ct. at 2426 (quoting Pa. Bd. of Probation and
Parole v. Scott, 524 U.S. 357, 363 (1998)), utilized to
compel respect for the constitutional guaranty embodied in
the Fourth Amendment, id. (quoting Elkins v. United States,
364 U.S. 206, 217 (1960)). See also United States v. Brown,
631 F.3d 638, 646 (3d Cir. 2011) ([T]he exclusionary rule is
merely a judicially created remedy designed to safeguard
Fourth Amendment rights generally through its deterrent
effect. (quoting United States v. Calandra, 414 U.S. 338,

348 (1974))). Suppression of evidence obtained through a
violation of the Constitution is not a personal constitutional
right, nor is it designed to redress the injury occasioned by
an unconstitutional search. Davis, 131 S. Ct. at 2426
(quoting Stone v. Powell, 428 U.S. 465, 486 (1976)). And
introduction of illegally obtained evidence at trial work[s] no
new Fourth Amendment wrong. Calandra, 414 U.S. at 354.
Instead, the exclusionary rules sole purpose . . . is to deter
future Fourth Amendment violations. Davis, 131 S. Ct. at
2426.
But application of the exclusionary rule is not
warranted in every circumstance in which it might provide
marginal deterrence. Herring, 555 U.S. at 141 (quoting
Scott, 524 U.S. at 368). Suppression is prudent only where it
would result in appreciable deterrence. Leon, 468 U.S. at
909 (emphasis added) (quoting United States v. Janis, 428
U.S. 433, 454 (1976)); see also Davis, 131 S. Ct. at 242627
(explaining that [w]here suppression fails to yield
appreciable deterrence, exclusion is clearly unwarranted
(omission omitted) (quoting Janis, 428 U.S. at 454));
Herring, 555 U.S. at 141 (same); Arizona v. Evans, 514 U.S.
1, 11 (1995) (same); Virgin Islands v. John, 654 F.3d 412,
417 (3d Cir. 2011) (same). In other words, suppression is
warranted only where its deterrence benefits outweigh the
substantial social costs inherent in preclud[ing]
consideration of reliable, probative evidence. Scott, 524
U.S. at 364; see also Davis, 131 S. Ct. at 2427 (For
exclusion to be appropriate, the deterrence benefits of
suppression must outweigh its heavy costs.); Tracey, 597
F.3d at 151 (To determine whether to apply the rule in a
particular case, we weigh the benefits of the rules deterrent

effects against the costs of exclusion . . . .).
The costs of suppression are substantial. Exclusion
exacts a heavy toll on both the judicial system and society at
large. Davis, 131 S. Ct. at 2427. The principal cost of
applying the rule is, of course, letting guilty and possibly
dangerous defendants go freesomething that offends basic
concepts of the criminal justice system. Herring, 555 U.S.
at 141 (quoting Leon, 468 U.S. at 908). But in addition to its
costly toll upon truth-seeking and law enforcement
objectives, Scott, 524 U.S. at 36465 (internal quotation
mark omitted), [i]ndiscriminate application of the
exclusionary rule, in some circumstances, may well
generate disrespect for the law and administration of
justice, Leon, 468 U.S. at 908 (alteration omitted) (quoting
Stone, 428 U.S. at 491). Consequently, [o]ur cases hold that
society must swallow this bitter pill when necessary, but only
as a last resort. Davis, 131 S. Ct. at 2427 (quoting Hudson
v. Michigan, 547 U.S. 586, 591 (2006)).
Against these costs, we weigh the benefits of the
rules deterrent effects. Tracey, 597 F.3d at 151. But we
must fight any instinct to reflexive[ly] appl[y] the rule.
Davis, 131 S. Ct. at 2427 (quoting Evans, 514 U.S. at 13).
The necessary analysis calls for a rigorous weighing of [the]
costs and deterrence benefits, focusing primarily on the
flagrancy of the police misconduct at issue. Id. (quoting
Leon, 468 U.S. at 911). See also John, 654 F.3d at 417
(explaining that the exclusionary rule is trigger[ed] only
where police conduct is sufficiently deliberate that exclusion
can meaningfully deter it, and sufficiently culpable that such
deterrence is worth the price paid by the justice system

(quoting Herring, 555 U.S. at 144)).
Of course, the deterrence benefits of exclusion vary
with the culpability of the law enforcement conduct at
issue. Davis, 131 S. Ct. at 2427 (alteration omitted) (quoting
Herring, 555 U.S. at 143). On the one hand, [w]hen the
police exhibit deliberate, reckless, or grossly negligent
disregard for Fourth Amendment rights, the deterrent value of
exclusion is strong and tends to outweigh the resulting costs.
Id. (quoting Herring, 555 U.S. at 144); see also John, 654
F.3d at 418 (condoning suppression where police conduct was
deliberate, reckless, or grossly negligent (quoting Tracey,
597 F.3d at 151)). But on the other hand, when the police
act with an objectively reasonable good-faith belief that
their conduct is lawful, or when their conduct involves only
simple, isolated negligence, the deterrence rationale loses
much of its force, and exclusion cannot pay its way. Davis,
131 S. Ct. at 242728 (citations and internal quotation marks
omitted) (quoting Herring, 555 U.S. at 137; Leon, 468 U.S. at
909, 908 n.6, 919).
Under this so-called good-faith exception to the
exclusionary rule, beginning with United States v. Leon, the
Supreme Court has consistently ruled that the costs of
suppression are not outweighed by the little, if any, deterrent
benefit of suppressing evidence obtained in [a] reasonable
good-faith belief that a search or seizure was in accord with
the Fourth Amendment. Leon, 468 U.S. at 909 (quoting
Gates, 412 U.S. at 255 (White, J., concurring)); see also
Evans, 514 U.S. at 1112 ([W]here the officers conduct is
objectively reasonable, excluding the evidence will not
further the ends of the exclusionary rule in any appreciable
way . . . . (alteration in original) (internal quotation mark

omitted) (quoting Leon, 468 U.S. at 91920)); Illinois v.
Krull, 480 U.S. 340, 34849 (1987) ([E]vidence should be
suppressed only if it can be said that the law enforcement
officer had knowledge, or may properly be charged with
knowledge, that the search was unconstitutional under the
Fourth Amendment. (quoting United States v. Peltier, 422
U.S. 531, 542 (1975))); Leon, 468 U.S. at 922 n.23 ([O]ur
good faith inquiry is confined to the objectively ascertainable
question whether a reasonably well trained officer would
have known that the search was illegal . . . .). Under such
circumstances, a reasonable officer cannot have been
expected to know that what he was doing was
unconstitutional, and, as a result, he is unlikely to be
discouraged in his actions by the knowledge that the fruits of
his unconstitutional searches will be suppressed. John, 654
F.3d at 417. Thus, at bottom, the harsh sanction of exclusion
should not be applied to deter objectively reasonable law
enforcement activity. Davis, 131 S. Ct. at 2429 (quoting
Leon, 468 U.S. at 919).
II.
Admittedly, the majority posits several pages focused
on the balancing test outlined in Herring and Davis; the test
which I describe at length above. See supra Part I. But while
purporting to consider whether, in light of all the
circumstances in this case, the law enforcement officers
conduct rises to the level of a deliberate, reckless, or grossly
negligent violation of the Fourth Amendment, Maj. Op. at
48, the majority fragments its analysis by discussing whether
Knotts and Karo and the cases from our sister circuits
addressing GPS and GPS-like devices are binding appellate

precedent under Davis.
Of course, the question of whether Daviss specific
holdingthat is, that law enforcement reliance on binding
appellate precedent qualifies as objective good-faith
conductlingers in the background of this case. In the event
the Government were arguing that the law enforcement
officers here relied on binding appellate precedent, I would
have no qualms with the majority addressing whether Knotts
and Karo and the relevant cases from our sister courts
properly qualified under that moniker. But, as the majority
makes clear, that is not the Governments argument.
Furthermore, although a seemingly reasonable
analytical choice, the majoritys decision to first address
whether those cases qualify as binding appellate precedent
later infects the more general good-faith analysis. That is, the
majority allows its conclusion that the Beeper Cases and
the Out-of-Circuit GPS Cases are not binding appellate
precedent to emaciate the weight given to law enforcement
reliance thereon in the more general good-faith analysis.
In effect, the majoritys search for Davis-like binding
appellate precedent in this case places a heavy thumb on the
scale in favor of suppression. Such an analysis does not
comply with the Leon line of cases, which, since their
inception, have time and again stated that the touchstone for
the good-faith exception is the objectively ascertainable
question whether a reasonably well trained officer would
have known that the search was illegal in light of all of the
circumstances, Herring, 555 U.S. at 145 (quoting Leon, 468
U.S. at 922 n.23); not whether the officers relied upon
binding appellate precedent, or some seemingly

immutable authority or information, as the majority implies.
See Maj. Op. at 36; see also id. at 49 (Try as we might to
allay our concerns, we remain supremely discomfited by the
lack of binding appellate guidance underlying the police
action in this case.).
At bottom, the majority claims that this case is
different. The officers here acted different[ly], (and,
thus, sufficiently culpable so as to justify application of the
exclusionary rule), the majority concludes, because the
officers relied on non-binding precedent from our sister
circuits and extrapolate[ed] from, or analogiz[ed] to, existing
case law rather than seeking a warrant. Maj. Op. at 50. But
the conclusion that this case is different results primarily
from the majoritys prior determinations that analogous and
non-binding precedent are materially different from the
binding appellate precedent dealt with in Davis; and, thus,
without binding appellate precedent, the rationale of Davis
and the other good-faith cases do not apply.
I do not think this case is different from other cases
involving the good-faith exception, where courts are
presented with specific facts and particularities and then
asked whether a reasonably well trained officer would have
known that the search [conducted] was illegal in light of all
the circumstances. Herring, 555 U.S. at 145 (internal
quotation marks omitted) (quoting Leon, 468 U.S. at 922
n.23). Davis is obviously important because the facts in that
caseofficer reliance on binding appellate precedentare
the most analogous of the Supreme Courts several good-faith
cases with which the Government, and we, have to work.
Regardless, the predominant importance of Davis is its
affirmation of deterrence and police culpability as the

lynchpins of the exclusionary rule analysis. The majority
thus erroneously elevates the binding appellate precedent
language to its own good-faith test instead of treating it as a
single consideration in the exclusionary rule analysis.
Nevertheless, of great significance to the instant
case, the majority insists, is the fact that in Davis the police
relied on binding appellate precedent that specifically
authorize[d the] particular police practice. Maj. Op. at 39
(quoting Davis, 131 S. Ct. at 2429). Thus, the majority
stresses, that Davis must be read as extend[ing] good faith
protection only to acts that are explicitly sanctioned by clear
and well-settled precedent. Maj. Op. at 40. First, I take
great issue with the majoritys suggestion that the good-faith
exception was extend[ed] by Davis, or any other case,
only to the specific factual circumstances therein. Courts
apply a single good-faith exception to either condone or
condemn varying factual circumstances. See Davis, 131 S.
Ct. at 2428 (The Court has over time applied [the] goodfaith exception across a range of cases.).
More importantly, the Davis dissent, other courts, and
commentators do not read the Davis majoritys articulation of
the good-faith exception as limited to only binding appellate
precedent. See Davis, 131 S. Ct. at 2439 (Breyer, J.,
dissenting) ([A]n officer who conducts a search that he
believes complies with the Constitution but which, it
ultimately turns out, falls just outside the Fourth
Amendments bounds is no more culpable than an officer
who follows erroneous binding precedent. Nor is an officer
more culpable where circuit precedent is simply suggestive
rather than binding, where it only describes how to treat
10
roughly analogous instances, or where it just does not exist.);

United States v. Sparks, 711 F.3d 58, 63 (1st Cir. 2013) (The
[Davis] Courts emphasis on the absence of police culpability
could be read to imply that good-faith reliance on out-ofcircuit appellate precedent is also acceptable.); United States
v. Baez, 878 F. Supp. 2d 288, 29495 (D. Mass. 2012) (Baez
argues that Davis should be limited to its precise holding. . . .
[But] th[at] interpretation is entirely too static . . . . It is
apparent that both the majority opinion and the concurring
and dissenting opinions anticipated the principles of Davis
would be worked out in subsequent cases raising themes and
variations.); Orin S. Kerr, Fourth Amendment Remedies and
Development of the Law: A Comment on Camreta v. Greene
and Davis v. United States, 2011 CATO SUP. CT. REV. 237,
255 (2011) (If the exclusionary rule solely concerns
culpability . . . its [sic] hard to see why binding precedent is
required. Reliance on binding precedent seems inherently
reasonable, but reliance is often reasonable without binding
precedent. A local police officer who conducts a search
widely upheld among the circuits but not yet addressed by the
[U.S. Court of Appeals] in his jurisdiction is no more
culpable than an officer who conducts a search upheld only
by his regional circuit. If the former has acted reasonably,
then surely so has the latter.).2
2
The majority supports its limiting reading of Davis

by pointing to the opinion below from the Eleventh Circuit,
and several similar cases from our sister circuits, wherein
courts stress. . . that [the] precedent on a given point must be
unequivocal before [those courts would] suspend the
exclusionary rules operation. United States v. Davis, 598
F.3d 1259, 1266 (11th Cir. 2010); see also United States v.
McCane, 573 F.3d 1037, 1045 (10th Cir. 2009) (Relying
11
Finally, the majority argues that Davis itself forecloses

the conclusion that law enforcement reliance on analogous or
non-binding out-of-circuit precedent could ever constitute
good faith. Quoting language from Davis,3 the majority
upon the settled case law of a United States Court of Appeals
certainly qualifies as an objectively reasonable law
enforcement behavior.); United States v. Jackson, 825 F.2d
853, 866 (5th Cir. 1987) (The exclusionary rule should not
be applied to searches which relied on Fifth Circuit law prior
to the change of that law . . . .); id. at 878 (Hill, J.,
concurring) (Outside of situations where we have authorized
the specific conduct undertaken and then later declared it
unconstitutional, I believe the analogy to Leon and Krull
weakens and the exception should probably not be applied.).
But the Supreme Court refrained from creating a similar
restraint. See Davis, 131 S. Ct. at 243536 (Sotomayor, J.,
concurring) (noting that Davis left the markedly different
question [of] whether the exclusionary rule applies when the
law governing the constitutionality of a particular search is
unsettled . . . unanswered). I therefore hesitate before
reading into Davis a limitation apparently at odds with its
rationale. See Kerr, supra at 255.
3
The language quoted by the majority reads as
follows:
This Court reviews criminal convictions from
12 Federal Courts of Appeals, 50 state courts of
last resort, and the District of Columbia Court
of Appeals. If one or even many of these courts
uphold a particular type of search or seizure,
defendants in jurisdictions in which the
question remains open will still have an
12
claims that the case explained that its holding was limited to
jurisdiction[s] where the law was clearly settled. Maj. Op. at
42 n.17. But the language to which the majority refers,
quoted in full at footnote 3, supra, is pure dicta, responding
not to an argument about what the good-faith exception
should or should not apply to but to the policy concern that
applying the good-faith exception to searches conducted in
reliance on binding precedent will stunt the development of
Fourth Amendment law. Davis, 131 S. Ct. at 2432; see also
id. at 2433 ([A]pplying the good-faith exception in this
context will not prevent judicial reconsideration of prior
Fourth Amendment precedents.).4 Furthermore, directly
undiminished incentive to litigate the issue.

This Court can then grant certiorari, and the
development of Fourth Amendment law will in
no way be stunted.
Davis, 131 S. Ct. at 2433.
4
As an aside, I fail to see how allowing law

enforcement reliance on analogous or non-binding out-ofcircuit precedent to influence substantially the good-faith
analysis would foreclose development of Fourth Amendment
law. Leon made clear that [t]here is no need for courts to
adopt the inflexible practice of always deciding whether the
officers conduct manifested objective good faith before
turning to the question [of] whether the Fourth Amendment
has been violated. 468 U.S. at 924. Defendants seeking
suppression of the fruits of allegedly unconstitutional
searches or seizures undoubtedly raise live controversies
which federal courts are empower[ed] . . . to adjudicate;
and courts have considerable discretion in conforming their
13
preceding this brief discussion, the Court reiterated that the

sole focus of the exclusionary rule is deterrence of culpable
law-enforcement conduct. Id. at 243233.
In short, I disagree with the way the majoritys opinion
reads to suggest that Davis alone answers the questions
presented in this appeal. In Davis, the Court was presented
with a unique set of facts to which its holding was expressly
directed: officer reliance on binding appellate precedent
later overruled. See Davis, 131 S. Ct. at 2429. Identified by
both the concurrence and the dissent, Davis did not touch the
questions of whether the exclusionary rule applies when the
law governing the constitutionality of a particular search is
unsettled, id. at 2435 (Sotomayor, J., concurring), or where
circuit precedent is simply suggestive rather than binding,
where it only describes how to treat roughly analogous
instances, or where it just does not exist, id. at 2439 (Breyer,
J., dissenting).
Of paramount importance to this case is that the
reasoning underlying Davis does address those questions.
Davis and the Courts good-faith jurisprudence teach us that
we must look at the totality of the circumstances and ask
whether, in light of those circumstances, the officers were
acting with deliberate, reckless, or grossly negligent
disregard for Fourth Amendment rights, which would justify
suppression, or, instead, whether they were acting with an
objectively reasonable good-faith belief that their conduct
[was] lawful or involve[d] only simple, isolated
negligence. Davis, 131 S. Ct. at 242728 (citations and
decisionmaking processes to the exigencies of particular
cases. Id. at 92425.
14
internal quotation marks omitted). For that reason, I disagree

with the majoritys conclusion that authority falling outside
the specific semblance of Davis is different and thus always
insufficient to support a finding of good-faith in every
circumstance.
In Davis, the Court explained that Leon imported the
reasoning of United States v. Peltier, 422 U.S. 531 (1975)
into the good-faith inquiry. Davis, 131 S. Ct. at 2432. In
Peltier, border patrol agents conducted a stop-and-search of
an automobile within a reasonable distance from the
Mexican border pursuant to a federal statute, federal
regulations promulgated in accordance with that statute, and a
continuous judicial approval of the statute and the . . .
policy across the federal courts. Peltier, 422 U.S. at 54042.
Although that statute and policy were overturned by the
Courts decision in Almeida-Sanchez v. United States, 413
U.S. 266 (1973), the Peltier Court refrained from applying
the exclusionary rule. See id. at 542.
Essential to the Peltier Courts decision was the nowfamiliar reasoning that evidence obtained from a search
should be suppressed only if it can be said that the law
enforcement officer had knowledge, or may properly be
charged with knowledge, that the search was unconstitutional
under the Fourth Amendment. Id. Especially relevant here,
the Court stated that unless we are to hold that parties may
not reasonably rely upon any legal pronouncement emanating
from sources other than this Court, we cannot regard as
blameworthy those parties who conform their conduct to the
prevailing statutory or constitutional norm. Id.
15
Thus, if the logic of Peltier was imported . . . into the

good-faith inquiry as Davis states, 131 S. Ct. at 2432, then a
uniform treatment of a particular law enforcement act by
the federal judiciary or a prevailing . . . norm can, in the
proper circumstances, support a finding of good faith. See
Herring, 555 U.S. at 145 ([O]ur good-faith inquiry is
confined to the objectively ascertainable question whether a
reasonably well trained officer would have known that the
search was illegal in light of all the circumstances.
(quoting Leon, 468 U.S. at 922 n.23)); cf. United States v.
Duka, 671 F.3d 329, 347 n.12 (3d Cir. 2011) (noting that
[t]he objective reasonableness of the officers reliance on the
statute . . . is further bolstered by the fact that the particular
provision at issue had been reviewed and declared
constitutional by several [out-of-circuit] courts (citing Davis,
131 S. Ct. at 2434)).
All in all, my problem with the method of the
majoritys good-faith analysis is that it myopically focuses
too much on the facts and narrow holdings of Davis and other
good-faith cases, and considers too little, if at all, the
reasoning and principles of law underlying those decisions.
The majoritys analysis is a search for some sort of
immutable authority or information that justifies [the law
enforcement officers] course of action. See Maj. Op. at 36.
But the good-faith exception to the exclusionary rule is not
limited to those circumstances. The good-faith inquiry, like
other Fourth Amendment analyses, requires us to slosh our
way through the factbound morass of reasonableness.
Scott v. Harris, 550 U.S. 372, 383 (2007).5 The question is,
5
The majority insinuates that my analysis would

burden district courts with [an unwarranted] type of case-by-
16
and always has been, whether the officers acted with a

reasonable good-faith belief that a search or seizure was in
accord with the Fourth Amendment. Leon, 468 U.S. at 909
(quoting Gates, 462 U.S. at 255 (White, J., concurring)); see
also Davis, 131 S. Ct. at 242728; Herring, 555 U.S. at 145;
Evans, 514 U.S. at 1112; Krull, 480 U.S. at 34849. Davis
answers yes to police actions taken in reliance on binding
appellate precedent. Davis, 131 S. Ct. at 2429. See also
Herring, 555 U.S. at 14748 (answering yes where officers
relied on an error in a police-maintained outstanding warrant
database); Evans, 514 U.S. at 1416 (answering yes where
officers relied on an error in court-maintained database);
Krull, 480 U.S. at 34950 (answering yes where officers
relied on a subsequently invalidated statute); Leon, 468 U.S.
at 922 (answering yes where officers relied on a
subsequently invalidated warrant). What we are asked to
answer is whether the result is the same when officers act in
case assessment, and create a sprawling, amorphous, and

self-contradicting doctrine. Maj. Op. at 45. But all of the
questions that the majority fearsi.e., how many circuits
had addressed the police practice in question, what each one
said, whether the statements were mere dicta; and what if
our sister courts had all ruled in near-unanimity on a point,
with one stalwart (perhaps, highly persuasive) holdout?
are exactly the sorts of questions we should be asking;
particularly where the Supreme Court instructs us to answer
the good-faith question by focusing on whether a reasonably
well trained officer would have known that the search
[conducted] was illegal in light of all the circumstances.
Herring, 555 U.S. at 145 (internal quotation marks omitted)
(quoting Leon, 468 U.S. at 922 n.23).
17
the circumstances in which they did here. As the following

analysis shows, I answer that question in the affirmative.
III.
A.
Before determining if the officers in this case acted
with an objectively reasonable belief that their conduct
complied with the Fourth Amendment, we must first
determine what, precisely, their conduct was. Jones lumps
the police conduct that occurred here into a singular act, see
Jones, 132 S. Ct. at 949 (installation of a GPS and its use to
monitor a vehicle are a search), as does the majority. But
before Jones, GPS or GPS-like surveillance was often treated
as two distinct acts: (1) the installation of the GPS or GPSlike device, and (2) the subsequent surveillance of the
automobile.6 Thus, for the purpose of my exclusionary rule
analysis, I find it appropriate to similarly separate the
officers conduct here into those two distinct Fourth
Amendment acts. See Sparks, 711 F.3d at 6667 (bifurcating
6
See, e.g., Karo, 468 U.S. at 71113 (analyzing Fourth

Amendment implications of beeper installation); id. at 713
18 (analyzing Fourth Amendment implications of beeper
surveillance); Knotts, 460 U.S. at 280 n.** (certiorari granted
on Fourth Amendment implications of beeper use and
pass[ing] on the issue of beeper installation); United States
v. Pineda-Moreno, 591 F.3d 1212, 121516 (9th Cir. 2010)
(analyzing GPS installation separately from GPS use); United
States v. Moore, 562 F.2d 106, 11112 (1st Cir. 1977) (same,
but with beepers).
18
its exclusionary rule / good-faith exception analysis with

regard to, first, the GPSs installation and, second, its
subsequent monitoring).7
B.
Application of the exclusionary rule depends on
whether the officers, at the time they were acting, would have
or should have known their installation of the GPS and their
7
I pause to note that separating GPS use into these two

distinct Fourth Amendment acts is not appropriate for
determining whether a Fourth Amendment search has
occurred.
The Jones majority clearly rejected the
concurrences suggestion that it do so. Compare Jones, 132
S. Ct. at 951 n.5 (finding the distinction between GPS
installation and use irrelevant for determining whether a
Fourth Amendment search had occurred, reasoning [a]
trespass on houses or effects, or a Katz invasion of
privacy, is not alone a search unless it is done to obtain
information; and the obtaining of information is not alone a
search unless it is achieved by such a trespass or invasion of
privacy), with id. at 958 (Alito, J., concurring) (finding it a
questionable proposition that [the] two procedures cannot be
separated for purposes of the Fourth Amendment analysis,
and reasoning that it is clear that both the installation and
use of the GPS, on their own, do not constitute a search).
But it is conceded that a search did occur in this case. My
analysis focuses on an entirely different question; to wit:
whether the officers would have known, at the time of their
actions, that their conduct was a search. Because, as
discussed in supra note 6, this question was often bifurcated
at the time, my analysis proceeds accordingly.
19
subsequent use of the GPS to track Harry Katzins vehicle

were unconstitutional. See Krull, 480 U.S. at 34849.
Relevant to this determination are the Supreme Courts case
law dealing with electronic surveillance and general searches
of automobiles, subsequent treatment of GPS and GPS-like
surveillance across the federal courts, and other
considerations.
1.
United States v. Knotts, 460 U.S. 276 (1983) and
United States v. Karo, 468 U.S. 705 (1984) are the authorities
most relevant to our analysis. In Knotts, Minnesota law
enforcement officers utilized an electronic beeper to conduct
surveillance on a vehicle driven by a man suspected to be part
of an illegal narcotics operation. 468 U.S. at 27780. In
determining the Fourth Amendment implications of that
activity, the Court determined that the alleged search
amounted principally to the following of an automobile on
public streets and highways. Id. at 281. The Court rejected
the argument that this constituted a search under the Fourth
Amendment, and held that [a] person traveling in an
another.8 Id. Because when one drives an automobile on
8
At the time, this holding was in accord many of the

courts of appeals to have addressed the issue. A compelling
number of courts found beeper surveillance did not implicate
the Fourth Amendment. See, e.g., United States v. Michael,
645 F.2d 252, 25758 (5th Cir. 1981) (en banc) (holding
subsequent monitoring, after installation of beeper upon
reasonable suspicion, did not violate . . . reasonable
20
expectation[s] of privacy); United States v. Hufford, 539

F.2d 32, 3334 (9th Cir. 1976) (holding ones movements in
his vehicle on a public road were knowingly exposed to the
public, and therefore are not a subject of Fourth Amendment
protection), partially overruled by Jones, 132 S. Ct. 945, as
recognized by United States v. Pineda-Moreno, 688 F.3d
1087, 1091 (9th Cir. 2012); cf. United States v. Bruneau, 594
F.2d 1190, 119697 (8th Cir. 1979) (holding that monitoring
the airborne location of an aircraft with a [beeper] is not a
search within the fourth amendment); United States v.
Clayborne, 584 F.2d 346, 35051 (10th Cir. 1978) (holding
use of beeper as a substitute for persistent extensive visual
surveillance, when it enters a clandestine laboratory
exposed to outside viewing and ingress and egress of the
public did not per se violate the Fourth Amendment).
Alternatively, some courts alluded that it implicated a
persons privacy interests, but did not hold such surveillance
required a warrant. See, e.g., United States v. Moore, 562
F.2d 106, 11112 (1st Cir. 1977) (holding beeper surveillance
requires probable cause, but no warrant), abrogated by United
States v. Knotts, 460 U.S. 276, 286 (1983), as recognized by
United States v. Sparks, 711 F.3d 58, 65 (1st Cir. 2013)
(Knotts . . . abrogated Moores probable cause requirement
for beeper surveillance . . . .); cf. United States v. Shovea,
580 F.2d 1382, 138788 (10th Cir. 1978) (The utilization of
an electronic tracking device, without prior court approval,
may be justified by probable cause and exigent
circumstances.). Conversely, a few cases did require a
formal warrant; but many of those cases involved installations
and surveillance occurring in private areas. See, e.g., United
21
public roads, he voluntarily convey[s] to anyone who

want[s] to look9 his location, progress, and route, he has no
States v. Bailey, 628 F.2d 938, 944, 94546 (6th Cir. 1980).
That was not the case in Knotts, nor is it the case here.
The Fifth Circuit at one time held that beeper
surveillance plainly implicated the Fourth Amendment. See
United States v. Holmes, 521 F.2d 859, 86567 (5th Cir.
1975) (A person has a right to expect that when he drives his
car into the street, the police will not attach an electronic
surveillance device to his car in order to track him. Although
he can anticipate visual surveillance, he can reasonably
expect to be alone in his car when he enters it and drives
away. . . . The[] failure to obtain a warrant is fatal.). But that
view seems to have been abrogated, if not overruled, by later
pre-Knotts cases. See Michael, supra.
9
The proposition that one has no reasonable

expectation of privacy in information willingly conveyed to
third parties remains unquestioned. Smith v. Maryland, 442
U.S. 735, 74344 (1979) (This Court consistently has held
that a person has no legitimate expectation of privacy in
information he voluntarily turns over to third parties.); see
also, e.g., California v. Greenwood, 486 U.S. 35, 4041
(1988) (no reasonable expectation of privacy in garbage bags
willingly left on street curb for pick up by third party). But
see Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring) ([I]t
may be necessary to reconsider the premise that an individual
has no reasonable expectation of privacy in information
voluntarily disclosed to third parties.).
22
reasonable privacy interest in whatever stops he ma[kes]

nor his final destination or otherwise. Id. at 28182.10
10
The Knotts Court also based its holding on the

similarly well-established open fields doctrine, see Air
Pollution Variance Bd. of Colo. v. W. Alfalfa Corp., 416 U.S.
861, 86465 (1974); United States v. Lee, 274 U.S. 559, 563
(1927); Hester v. United States, 265 U.S. 57, 59 (1924),
stating the beepers ability to enhance visual surveillance was
of no consequence. Knotts, 460 U.S. at 282 (Nothing in the
Fourth Amendment prohibited the police from augmenting
the sensory faculties bestowed upon them at birth with such
enhancement as science and technology afforded them in this
case.); see also Boyd v. United States, 116 U.S. 616, 628
(1886) (The eye cannot . . . be guilty of a trespass . . . .
(quoting Entick v. Carrington, 95 Eng. Rep. 807 (K.B.
1765))).
Technological enhancements of purely visual
surveillance have, since Knotts, received similar treatment.
See Florida v. Riley, 488 U.S. 445, 48852 (1989) (aerial
surveillance of interior of partially covered greenhouse from a
helicopter 400 feet overhead is not a search); Dow Chem. Co.
v. United States, 476 U.S. 227, 23839 (1986) (aerial
photographs taken from an airplane over an industrial
complex are not searches); California v. Ciraolo, 476 U.S.
207, 21114 (1986) (aerial surveillance of an open
greenhouse from an airplane 1,000 feet overhead is not a
search); Texas v. Brown, 460 U.S. 730, 73940 (1983)
(plurality opinion) (using flashlight to look into car interior
and open glove compartment at night is not a search). But see
Kyllo v. United States, 533 U.S. 27, 3334 (2001) (use of
infrared light technology to detect heat waves radiating off a
home is a search because that information could not
otherwise have been obtained without physical intrusion into
23
A little over a year later, the Court reaffirmed this

conclusion in Karo. But Karo clarified that the use of
beepers to monitor cars and other objects was not without
limits. Only in situations in which officers employ electronic
devices to obtain information that could otherwise be
obtained by visual surveillance in public places are officers
able to rely upon Knottss holding. See Karo, 468 U.S. at
71316. Thus, the use of a beeper to monitor objects within
private residences implicates the Fourth Amendment and
requires a warrant. See id. at 714, 71718.
What Knotts initially left undecided, however, was
whether the installation of the beeper was a search under the
Fourth Amendment. See Knotts, 460 U.S. at 290 n.**; id. at
286 (Brennan, J., concurring). In both Knotts and Karo, the
officers themselves neither installed nor placed the beepers
onto or into the vehicles. In Knotts, the officers, with the
consent of a chemical manufacturing company, installed a
beeper inside a container for chemicals. The company agreed
that the next time a suspected narcotics manufacturer came to
purchase chemicals, they would put the chemicals he
purchased in that particular container. After purchasing the
chemicals, the suspect willingly placed the bugged container
into his car, allowing the police to easily monitor his
movements. 460 U.S. at 278. In Karo, the officers
cooperated with a government informant so as to ensure that
Karo, who was suspected of manufacturing narcotics, was
similarly duped into purchasing a container of chemicals
a constitutionally protected area and the technology in
question [was] not in general public use (internal quotation
marks omitted) (quoting Silverman v. United States, 365 U.S.
505, 512 (1960))).
24
containing a beeper. Once the purchase had occurred, and

Karo placed the container in his car, the officers utilized the
beeper to monitor his movements. 468 U.S. at 708.
Karo held that where officers arrange for a suspect to
obtain an item containing a beeper, even if the suspect has no
knowledge of the items foreign tenant, that transfer did not
intrude upon that suspects reasonable expectations of
privacy. Id. at 712. In short, the transfer created a potential
for an invasion of privacy, but the mere fact that officers
arranged for a beeper to come into the possession of an
individual or into an individuals property infringed no
privacy interest. Id. Moreover, Karo reasoned that [a]t
most, there was a technical trespass on the space occupied by
the beeper. Id. But the Court concluded that [t]he
existence of a physical trespass is only marginally relevant to
the question of whether the Fourth Amendment has been
violated . . . , for an actual trespass is neither necessary nor
sufficient to establish a constitutional violation. Id. at 712
13.11 As a result, the Court held that any impairment of . . .
11
Karos conclusion that an actual trespass is neither

necessary nor sufficient to establish a constitutional violation
was, until Jones, sacrosanct in Fourth Amendment law. In
Katz v. United States, 389 U.S. 347 (1967), the Supreme
Court turned Fourth Amendment questions away from their
common-law trespass foundation. See 389 U.S. at 353
([T]he trespass doctrine . . . can no longer be regarded as
controlling.). Thereafter, the Fourth Amendment touchstone
was whether the government had intruded upon a persons
reasonable expectations of privacy. See id. at 360 (Harlan, J.,
concurring); see also Jones, 132 S. Ct. at 950; United States
v. Mosley, 454 F.3d 249, 253 (3d Cir. 2006) ([T]he Fourth
25
Amendments protection against unreasonable searches is

predicated on the invasion by the government of a persons
reasonable expectation of privacy . . . .). For instance, in
Oliver v. United States, 466 U.S. 170 (1984), the police
officers undoubtedly trespassed upon the petitioners
property. But, because it was found that the officers were
trespassing upon only the open fields of petitioners
property, he could not demand privacy for activities
conducted or incriminating evidence found upon that
property. 466 U.S. at 17778. The vast consensus was, then,
that a physical trespassregardless of whether it would
have been considered an actual trespass under the common
lawbecame a search only when that trespass infringed
upon a persons reasonable expectation of privacy. See, e.g.,
Rakas v. Illinois, 439 U.S. 128, 143 (1978) ([C]apacity to
claim the protection of the Fourth Amendment depends not
upon a property right in the invaded place but upon whether
the person who claims the protection of the Amendment has a
legitimate expectation of privacy in the invaded place.);
United States v. Acosta, 965 F.2d 1248, 125657 (3d Cir.
1992). Indeed, the courts of appeals addressing the Fourth
Amendment implications of GPS and GPS-like installation
after Knotts and Karo made little of the physical trespass that
occurred when police installed devices directly upon
automobiles, primarily because the invasion of privacy that
occurred was minimal or non-existent. See United States v.
Marquez, 605 F.3d 604, 60910 (8th Cir. 2010); United
States v. Pineda-Moreno, 591 F.3d 1212, 1215 (9th Cir.
2010); United States v. Garcia, 474 F.3d 994, 997 (7th Cir.
2007); United States v. McIver, 186 F.3d 1119, 112627 (9th
Cir. 1999); see also United States v. Michael, 645 F.2d 252,
25758 (5th Cir. 1981).
26
privacy interests that may have occurred was occasioned by

the monitoring of the beeper, not its installation. Id. at
713.12
Thus, at bottom, before Jones, Knotts and Karo
established that no Fourth Amendment search occurred where
officers use beeper-based electronics to monitor an
automobiles movements on public roads because a person
has no reasonable expectation of privacy with regard to that
information. But, because the facts of Karo correspondingly
limited its holding, those cases did not address whether
installation of a beeper onto or into a vehicle, in all
circumstances, was a search. Nonetheless, Karos reasoning
regarding the Fourth Amendment implications of a beeper
installation on an automobile is telling, and was certainly
informative in the subsequent treatment of the issue
throughout the federal courts.
Additionally, several other well settled Fourth
Amendment principles are relevant. Before Jones, the
12
The Karo Court also rejected the argument that the

transfer of the bugged container constituted a seizure, holding
that no possessory interest was interfered with in a
meaningful way. Karo, 468 U.S. at 712; see also id. (A
seizure of property occurs when there is some meaningful
interference with an individuals possessory interests in that
property. (quoting United States v. Jacobsen, 466 U.S. 109,
113 (1984)). Later cases did not disturb this holding, see,
e.g., United States v. Garcia, 474 F.3d 994, 996 (7th Cir.
2007), and Appellees here do not allege the GPS installation
or subsequent surveillance was a seizure.
27
Supreme Court had made perfectly clear that persons did not
enjoy a reasonable expectation of privacy in the exterior of
their automobiles. New York v. Class, 475 U.S. 106, 114
(1986); see also Cardwell v. Lewis, 417 U.S. 583, 591 (1974).
Similarly axiomatic were the principles that a simple
trespass or physical intrusion alone, absent an
infringement upon a reasonable expectation of privacy, was
not a search, see supra Note 11; that information willingly
conveyed to third parties, such as when a car travels public
thoroughfares where its occupants and its contents are in plain
view, Cardwell, 417 U.S. at 590, retains no reasonable
expectation of privacy, see supra Note 9; and that objects
willingly placed or left in the open fields, regardless of
whether those fields are trespassed upon, see Oliver, 466 U.S.
at 17780, do not enjoy a reasonable expectation of privacy,
see supra Note 10.
2.
After Knotts and Karo, what resulted was a uniform
consensus across the federal courts of appeals to address the
issue that the installation and subsequent use of GPS or GPSlike device was not a search or, at most, was a search but did
not require a warrant. See, e.g., United States v. Marquez,
605 F.3d 604, 60910 (8th Cir. 2010) (reasoning that
installation and use of GPS requires only reasonable
suspicion, since monitoring on public roads is not a search);
United States v. Pineda-Moreno, 591 F.3d 1212, 121516
(9th Cir. 2010) (holding that GPS installation and use was not
a search); United States v. Garcia, 474 F.3d 994, 99798 (7th
Cir. 2007) (same); United States v. McIver, 186 F.3d 1119,
112627 (9th Cir. 1999) (same); see also United States v.
Michael, 645 F.2d 252, 25658 (5th Cir. 1981) (en banc)
28
(holding that installation and use of beeper requires only

reasonable suspicion, since monitoring on public roads is not
a search).13
Most federal district courts, including the Middle
District of Pennsylvania, had reached the same result. United
States v. Jesus-Nunez, No. 1:10-cr-00017-01, 2010 WL
2991229, **35 (M.D. Pa. July 27, 2010) (Since there was
no Fourth Amendment search or seizure by the Governments
use of the GPS device, the court finds that the agents did not
need probable cause or even reasonable suspicion to attach
and monitor the [GPS] device to Defendants cars.); e.g.,
United States v. Burton, 698 F. Supp. 2d 1303, 130708
(N.D. Fla. 2010); United States v. Moran, 349 F. Supp. 2d
425, 46768 (N.D.N.Y. 2005).
The only case to break from this consensus was United
States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). In
Maynard, the D.C. Circuit held that prolonged use of a GPS
device to monitor the movements of defendant Joness
vehicle 24 hours a day for four weeks, was a search
under the Fourth Amendment. 615 F.3d at 555. According to
the D.C. Circuit, Knotts was not controlling of the question,
as the court reasoned that Knottss holding endorsed only that
13
Michael was also the law in the Eleventh Circuit.

See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc) (decisions of the Fifth Circuit prior to
October 1, 1981 are binding on the Eleventh Circuit); United
States v. Smith, 387 F. Appx 918, 92021 (11th Cir. 2010)
(unpublished) (citing United States v. Michael, 645 F.2d 252
(5th Cir. 1981) to support the proposition that GPS
installation was not a search).
29
[a] person traveling in an automobile on public

thoroughfares has no reasonable expectation of privacy in his
movements from one place to another, not that such a person
has no reasonable expectation of privacy in his movements
whatsoever, world without end. Id. at 557 (alteration in
original) (citation omitted) (quoting Knotts, 460 U.S. at 281).
The court reasoned that the Supreme Court in Knotts, and the
later cases across the courts of appeals, all reserved the
issue of whether wholesale or mass electronic
surveillance of many individuals requires a warrant. Id. at
558.14
As a result, the court concluded that although it may be
one thing for a passerby to observe or even to follow
someone during a single journey as he goes to the market or
returns home from work, it is a whole other thing for that
stranger to pick up the scent again the next day and the day
after that, week in and week out, dogging his prey until he has
identified all the places, people, amusements, and chores that
make up that persons hitherto private routine. Id. at 560.
The courts analysis in Maynard, therefore, was focused not
on the installation of the device but rather the prolonged use
14
The Supreme Court in Knotts, in response to the

argument that its holding would allow twenty-four hour
surveillance of any citizen of this country . . . without judicial
knowledge or supervision, opined that the reality hardly
suggests abuse, and suggested that if such dragnet-type
law enforcement practices . . . should eventually occur, there
will be time enough then to determine whether different
constitutional principles may be applicable. Knotts, 460
U.S. at 28384 (quoting Zurcher v. Stanford Daily, 436 U.S.
547, 566 (1978)).
30
of the GPS and the quality and quantity of information

obtained over an extended period of time. Id. at 562
(Prolonged surveillance reveals types of information not
revealed by short-term surveillance, such as what a person
does repeatedly, what he does not do, and what he does
ensemble. These types of information can each reveal more
about a person than does any individual trip viewed in
isolation.).15
Other than Maynard, only a handful of dissenting
opinions questioned Knottss and Karos holdings or their
applicability to GPS installation and subsequent surveillance.
See Karo, 468 U.S. at 736 (Stevens, J., dissenting) (The
impact of beeper surveillance upon interests protected by the
Fourth Amendment leads me to what I regard as the perfectly
sensible conclusion that absent exigent circumstances
Government agents have a constitutional duty to obtain a
warrant before they install an electronic device on a private
citizens property.); United States v. Pineda-Moreno, 617
F.3d 1120, 112426 (9th Cir. 2010) (Kozinski, C.J.,
dissenting from denial of rehearing en banc) (arguing that
15
I pause here to note that the majority characterizes

Maynard as having held that the mere act of attaching a GPS
device onto a persons vehicle for the purpose of conducting
continual surveillance, alone, constituted a search. See Maj.
Op. at 16; see also id. at 27 n.9 (describing that Maynard
explained that warrantless installation of a GPS device by
the police was per se unreasonable under the Fourth
Amendment). Such a characterization is unfaithful to the
panels opinion, which explicitly tailored its holdings to the
fact that the surveillance conducted in that case lasted for a
month. See Maynard, 615 F.3d at 558, 560.
31
GPS surveillance is a search because GPS devices have little

in common with the primitive devices in Knotts, and provide
officers the power to track the movements of every one of
us, every day of our lives); Michael, 645 F.2d at 26070
(Tate, J., dissenting) (disagreeing with majority that an
individual living under our Constitution has no reasonable
expectation of privacy such as would protect him from a
trespass upon his property by governmental agents, a trespass
that enables them to maintain continuous electronic
surveillance over his movements twenty-four hours per day
continuously and indefinitely).
3.
I also find several other considerations relevant. First,
and most important, is Rule 41(b) of the Federal Rules of
Criminal Procedure, which governs the issuance of warrants
in all federal criminal proceedings. The 2006 Advisory
Committees Note explains that Rule 41(b) was amended, in
part, to address the use of tracking devices. Fed. R. Crim.
P. 41(b) advisory comm. note (2006). In describing the ideal
procedure, the Note states that [w]arrants may be required to
monitor tracking devices when they are used to monitor
persons or property in areas where there is a reasonable
expectation of privacy. Id. (citing Karo, 468 U.S. 705).
Elaborating, the note instructs that if the officers intend to
install or use the device in a constitutionally protected area,
they must obtain judicial approval to do so. Id. But, [i]f,
on the other hand, the officers intend to install and use the
device without implicating any Fourth Amendment rights,
there is no need to obtain the warrant. Id. (citing Knotts,
460 U.S. 276).
32
Moreover, the law enforcement officers consulted with

an Assistant United States Attorney before conducting the
installation of the GPS unit and the subsequent surveillance.
(See Appellant Br. at 56.) I agree with the majority that a
government attorneys approval, standing alone, cannot and
should not suffice to demonstrate good faith. Maj. Op. at 52
n.23. But, as Appellees attorney conceded at oral argument,
it is certainly another consideration to take into account in the
good-faith analysis. (See Oral Arg. Trans. at 52: 46
(conceding that the officers reliance on the opinion of an
Assistant United States Attorney was a factor to look at in
determining whether the officers acted in good faith).) See
also Tracey, 597 F.3d at 153 (concluding that approval from a
government attorney, inter alia, was one consideration
evidencing that [a] reasonable officer would . . . have
confidence in the validity of the [search]); United States v.
Otero, 563 F.3d 1127, 1134 (10th Cir. 2009) (same); United
States v. Fama, 758 F.2d 834, 837 (2d Cir. 1985) (same).
IV.
In my view, in light of the legal landscape discussed
above, when the officers installed the GPS device16 upon the
undercarriage of Harry Katzins vehicle, and then used that
16
By installed the GPS device, of course, I mean

that the officers magnetically attached the slap on GPS
device upon the undercarriage of Harry Katzins vehicle.
That device was totally independent of the car, operating
under its own power. Also, it was not physically installed
onto the car using screws, adhesives, or otherwise. Its
attachment was occasioned only magnetically. Thus, for the
purpose of my analysis, I focus on those facts.
33
device to monitor the vehicles movements for two days

while it traversed public thoroughfares, those officers were
acting with an objectively reasonable good-faith belief that
their conduct [was] lawful. Davis, 131 S. Ct. at 2427
(quoting Leon, 468 U.S. at 909). I find that the officers
actions in this case do not exhibit deliberate, reckless, or
grossly negligent disregard for Fourth Amendment rights,
id. (quoting Herring, 555 U.S. at 144), and, thus, the
deterrent value of excluding the evidence found pursuant to
the officers conduct would not outweigh the resulting
costs. Id. Simply put, in this case, exclusion cannot not
pay its way. Id. at 2428 (quoting Leon, 468 U.S. at 908
n.6).
A.
The officers here were acting with an objectively
reasonable good-faith belief that their warrantless installation
of the GPS device upon the undercarriage of Harry Katzins
automobile did not run afoul of the Fourth Amendment.
Based on fundamental Fourth Amendment principles
which would have been familiar to any reasonably well
trained law enforcement officer, there was no possibility that
the officers, at the time they installed the GPS upon Harry
Katzins vehicle, would have had knowledgenor could
we now charge[] [them] with knowledgethat the search
was unconstitutional under the Fourth Amendment. Krull,
480 U.S. at 34849 (quoting Peltier, 422 U.S. at 542).
Before Jones, the touchstone of any Fourth
Amendment analysis was whether the Government had
invaded upon a persons reasonable expectation of privacy.
34
See Katz, 389 U.S. at 360 (Harlan, J., concurring); see also
Bond v. United States, 529 U.S. 334, 338 (2000); California
v. Ciraolo, 476 U.S. 207, 211 (1986). [A]n actual trespass
[was] neither necessary nor sufficient to establish a
constitutional violation. Karo, 468 U.S. at 713 (emphasis
added); see also supra note 11. As a result, a reasonably well
trained law enforcement officer would have known that the
installation of the GPS unit upon the undercarriage of Harry
Katzins vehicle was a Fourth Amendment search only in
the event that it was apparent that Harry Katzin had a
reasonable expectation of privacy in that area.
Of course, Harry Katzin had a reasonable expectation
of privacy with respect to the interior of his vehicle; even if
that privacy interest was diminished. See Cardwell, 417 U.S.
at 58990. But it would have been objectively reasonable for
a law enforcement officer to conclude that he lacked a
reasonable expectation of privacy in the exterior
specifically, the undercarriageof the vehicle.
In Cardwell v. Lewis, 417 U.S. 583 (1974) and again
in New York v. Class, 475 U.S. 106 (1986), the Supreme
Court made it quite clear that persons lack a reasonable
expectation of privacy in the exterior of their automobiles.
See Cardwell, 417 U.S. at 591 92 (With the search limited
to the examination of the tire on the wheel and the taking of
paint scrapings from the exterior of the vehicle left in the
public parking lot, we fail to comprehend what expectation of
privacy was infringed.); Class, 475 U.S. at 114 (plurality
opinion) (The exterior of a car, of course, is thrust into the
public eye, and thus to examine it does not constitute a
search. (citing Cardwell, 417 U.S. at 58889)). In light of
this long-standing Supreme Court precedent, the officers
35
would have had an objectively reasonable good-faith belief

that Harry Katzin lacked a reasonable expectation in the
exterior of his vehicle, and thus that their conduct was
lawful when they installed the GPS on the cars
undercarriage. Davis, 131 S. Ct. at 2427 (internal quotation
mark omitted).17
Again, I make no claim that Class or Cardwell qualify
as binding appellate precedent under Davis. That does not
end the inquiry, however. Instead, what resolves the inquiry
is that, in light of the pre-Jones legal landscape, the law
enforcement officers here could have reasonably concluded
that Supreme Court precedent authorized, or at the very least
affirmed the constitutionality of, their conduct. Regardless of
17
The majority is correct to point out, in its brief

discussion of Classs applicability to our warrant analysis,
that Jones dismissed Classs relevancy with regard to whether
a search occurs where officers install and subsequently track a
GPS device upon an automobile. See Maj. Op. at 34 n.14.
That does not mean, however, that Class and Cardwell are
similarly irrelevant to our good-faith analysis. At the time the
officers were acting, those two cases were generally
understood to stand for the proposition that one lacks a
reasonable expectation of privacy in the exterior of his
automobile. See, e.g., Pineda-Moreno, 591 F.3d at 1215
([T]he undercarriage of a vehicle, as part of its exterior, is
not entitled to a reasonable expectation of privacy.); United
States v. George, 971 F.2d 1113, 111920 (4th Cir. 1992)
(There is thus little question in the aftermath of Cardwell
and Class that one does not have a reasonable expectation of
privacy in the visible exterior parts of an automobile that
travels the public roads and highways.).
36
the alternate facts in Class and Cardwell, those cases

holdings and principles of law, which would have been
known by a reasonably well trained law enforcement officer,
made it clear that before Jones a person lacked a reasonable
expectation of privacy in the exterior of his automobile, and,
thus, a simple trespass thereupon by law enforcement officers
would not have constituted a search. As a result, I cannot
conclude that the law enforcement officers conduct in
installing the GPS device to the undercarriage of Harry
Kaztins vehicle was a deliberate, reckless, or grossly
negligent disregard of Fourth Amendment rights. Davis,
131 S. Ct. at 2427 (quoting Herring, 555 U.S. at 144).
B.
Similarly, the officers here were acting with an
objectively reasonable good-faith belief that their warrantless
use of the GPS to monitor Harry Katzins vehicle while it
traversed public roads over the course of two days was
constitutionally permissible.
First, the majority distinguishes, and thus dismisses,
Knotts and Karo on their facts. Paramount, the majority says,
are that facts that [n]either case involved a physical trespass
onto the target vehicle; in both cases the police placed the
beeper inside of a container which was then loaded into the
target vehicle by the driver . . . . [and] both Karo and Knotts
addressed the use of beepers, which . . . are markedly
different from GPS trackers. Maj. Op. at 40. True, these
factual distinctions would matter much if the Government
were arguing that Knotts and Karo qualified as binding
appellate precedent under Davis. But, as discussed above,
that is not the Governments argument. A reasonably well
37
trained police officer, acting in December 2010, would have

thought Knotts and Karo to have meant exactly what they
said with regard to GPS and GPS-like surveillance. Those
cases made absolutely clear that [a] person traveling in an
another, Knotts, 460 U.S. at 281, because the movements
of the automobile while on public roads could have been
observed by the naked eye. See Karo, 468 U.S. at 71314.
Thus, the Fourth Amendment simply was not implicated. See
id.; see also Sparks, 711 F.3d at 65 (After Knotts . . . [it was]
settled . . . [that] using a beeper to monitor a persons
movements in a car on public roads did not implicate the
Fourth Amendment, because there was no privacy interest to
be infringed.). At the time the officers were acting, Knottss
holding was familiar and sacrosanct. See, e.g., Marquez, 605
F.3d at 609; Garcia, 474 F.3d at 996; McIver, 186 F.3d at
1126.
This may well be enough to justify the officers good
faith in performing warrantless GPS surveillance of Harry
Katzins automobile. See Sparks, 711 F.3d at 6667
(concluding good-faith exception applied to GPS surveillance
because Knotts clearly authorized the agents to use a GPSbased tracking device). But I need not answer that question,
because good faith is determined in light of all of the
circumstances. Leon, 468 U.S. at 922 n.23; see also
Herring, 555 U.S. at 145. In this case, in addition to Knotts
and Karo, the officers were also guided, and reasonably
relied, upon a uniform treatment of continuous judicial
approval across the federal courts with regard to the
constitutionality of warrantless GPS use. See Peltier, 422
U.S. at 54142; see also Caleb Mason, New Police
38
Surveillance Technologies and the Good-Faith Exception:

Warrantless GPS Tracker Evidence After United States v.
Jones, 13 NEV. L. J. 60, 65 (2012) (before Jones, everyone
thought that the key fact from Knotts and Karo was that
the cars were being monitored while they were on public
roads, where anyone could see them). Specifically, nearly
every federal court to consider the issue had concluded that a
warrant was unnecessary to conduct GPS surveillance, the
sole exception being Maynard.18
Consequently, in light of Knotts and Karo, and their
subsequent treatment, it was objectively reasonable for the
law enforcement officers to have believed that the use of the
GPS device to conduct surveillance upon Harry Katzins
vehicle while it moved along public roadways was not a
Fourth Amendment search. See Knotts, 460 U.S. at 28283
(explaining that where one travel[s] over the public streets
he voluntarily convey[s] to anyone who want[s] to look the
fact that he [is] traveling over particular roads in a particular
direction, the fact of whatever stops he ma[kes], and the fact
of his final destination); Ciraolo, 476 U.S. at 224 (Powell, J.,
dissenting) (Comings and goings on public streets are public
matters, and the Constitution does not disable police from
observing what every member of the public can see.); id. at
215 (majority opinion) (The Fourth Amendment simply does
18
The majority claims that, under the logic of my

analysis, Maynard should have put the law enforcement
officers on notice that [GPS] devices could implicate Fourth
Amendment rights. Maj. Op. at 54 n.24 (alteration,
omission, and internal quotation marks omitted). For the
reasons set forth at infra Part V, I disagree.
39
not require the police traveling in the public . . . to obtain a

warrant in order to observe what is visible to the naked eye.).
C.
Moreover, two additional considerations bolster my
conclusion that the law enforcement officers here acted with
an objectively reasonable good-faith belief that their
conduct was lawful. Davis, 131 S. Ct. at 2427 (quoting Leon,
468 U.S. at 909).
First is the fact that the warrantless installation of the
GPS device and its subsequent surveillance complied with the
commentary to Rule 41(b) of the Federal Rules of Criminal
Procedure, which states that [i]f . . . the officers intend to
install and use [a GPS] device without implicating any Fourth
Amendment rights, there is no need to obtain [a] warrant.
FED. R. CRIM. P. 41(b) advisory comm. note (2006). As
discussed, it was objectively reasonable for the officers to
have concluded that Harry Katzin lacked a reasonable
expectation of privacy in the undercarriage of his automobile,
and the GPS device was never used to conduct surveillance in
any area but the public roadways upon which the car was
traveling. Thus, a reasonable reading of this commentary
would have led to the equally reasonable conclusion that the
officers here did not require a warrant to act.19
19
Although the Government neglected to argue this

fact, similar arguments have been made in similar cases,
including cases heard by District Courts in this Circuit. See,
e.g., United States v. Lopez, __ F. Supp. 2d __, C.A. No. 10cr-67(GMS), 2013 WL 3212347, at *3 (D. Del. June 26,
2013); United States v. Willford, __ F. Supp. 2d __, Crim. No.
40
Second, the law enforcement officers consulted with

an Assistant United States Attorney before conducting the
installation of the GPS unit and the subsequent surveillance.
(See Appellant Br. at 56.) More than likely, that attorneys
discussion with the officers about the constitutionality of their
conduct proceeded along similar lines as my analysis above.
But, important for our purposes, the fact that the officers
consulted with a government attorney before acting, who then
approved their desired course of action, although certainly not
dispositive on its own, is a consideration weighing in favor of
the conclusion that [a] reasonable officer would . . . have
confidence in the validity of the [search]. Tracey, 597 F.3d
at 153; see also Otero, 563 F.3d at 1134; Fama, 758 F.2d at
837.
Thus, taking into consideration the Supreme Court
jurisprudence, the near unanimous treatment by the federal
ELH-11-0258, 2013 WL 2552446, at *20 (D. Md. June 7,
2013). Furthermore, the majority claims this commentary is a
codification of nothing more than the unremarkable
proposition that the police need not obtain a warrant if their
action does not violate the Fourth Amendment. Since
Maynard put law enforcement on notice that GPS use could
affect Fourth Amendment rights, the majority reasons, the
Rule has no substantive effect on the good-faith analysis.
Maj. Op. at 54 n.24. Again, as I discuss at infra Part V, I do
not read Maynard to have such an effect, and, thus, I am at a
loss to see how a reasonably well trained law enforcement
officer, acting at the time the officers did in this case, could
have known that their actions implicat[ed] . . . the Fourth
Amendment.
41
courts to have addressed the issue, the commentary to Rule

41(b) of the Federal Rules of Criminal Procedure, and the fact
the officers here consulted with an Assistant United States
Attorney, it is clear that the officers were not acting with
deliberate, reckless, or grossly negligent disregard of
Fourth Amendment rights, Davis, 131 S. Ct. at 2427
(quoting Herring, 555 U.S. at 144), when they conducted the
warrantless installation and subsequent surveillance of the
GPS device upon Harry Katzins automobile, but were
instead acting with an objectively reasonable good-faith
belief that their conduct [was] lawful. Id. (quoting Leon,
468 U.S. at 909).
V.
The majority holds otherwise, because, in its view, the
difference between the beepers used in Knotts and Karo and
the GPS device used in this case is one of kind, not degree,
Maj. Op. at 47 n.20, which makes all the differen[ce].
Furthermore, the majority chides reliance on Knotts, Karo,
and the relevant cases from our sister circuits because United
States v. Maynard, which held that prolonged GPS
surveillance was a search and did require a warrant, put the
officers on notice that such devices could implicat[e] . . .
Fourth Amendment rights. Maj. Op. at 54 n.24. I disagree
that these two considerations render the officers conduct here
objectively unreasonable and sufficiently culpable so as to
incur the wrath of the exclusionary rule.
Certainly, the technological difference between the
beepers of the 1980s and modern GPS devices is a
consideration to take into account in determining whether the
law enforcement officers were acting with an objectively
42
reasonable belief their actions were lawful. Modern GPS

units do not require police to follow the suspect visually, do
not allow the driver to detect tailing, and do not require an
expensive deployment of equipment and manpower. United
States v. Hernandez, 647 F.3d 216, 221 (5th Cir. 2011); see
also Maynard, 615 F.3d at 565 (opining that practical
considerations prevent visual surveillance from lasing [as]
long as the use of the GPS in [that] case); Pineda-Moreno,
617 F.3d at 1126 (Kozinski, C.J., dissenting from denial of
rehearing en banc) ([T]heres no hiding from the all-seeing
network of GPS satellites that hover overhead, which never
sleep, never blink, never get confused and never lose
attention.).
Admittedly, this makes GPS devices different from the
beepers used in Knotts and Karo.
Beepers do not
independently determine their geographic location, but,
instead, emit[] periodic signals that can be picked up by a
radio receiver within range of the beepers radio transmitter.
See Knotts, 460 U.S. at 277. Beepers thus aid law
enforcement by assisting officers in visual surveillance of a
suspect, rather than doing the work of the officer altogether.
See Pineda-Moreno, 617 F.3d at 1124 (Kozinski, C.J.,
dissenting from the denial of rehearing en banc) ([M]odern
[GPS] devices . . . can record the cars movements without
human interventionquietly, invisibly, with uncanny
precision.).
Notwithstanding these technological differences, [i]t
is the exploitation of technological advances that implicates
the Fourth Amendment, not their mere existence. Karo, 468
U.S. at 712. Certainly, a GPS tracker is more capable than a
beeper, but nothing inheres in the technology to take it out of
43
Knottss holding. Sparks, 711 F.3d at 66 (footnote omitted)

(quoting United States v. Cuevas-Perez, 640 F.3d 272, 278
(7th Cir. 2011) (Flaum J., concurring)); see also United States
v. Andres, 703 F.3d 828, 835 (5th Cir. 2013) (finding that
any possible technological differences between a 1981
beeper and the GPS device insufficient because the two
devices functionality [were] sufficiently similar); United
States v. Jones, 625 F.3d 766, 768 (D.C. Cir. 2010) (Sentelle,
C.J., dissenting from the denial of rehearing en banc) (There
is no material difference between tracking the movements of
the Knotts defendant with a beeper and tracking the Jones
appellant with a GPS.).
Regardless of the technological differences, the GPS
reported to law enforcement no more information than that
which the officers could have obtained through pure visual
surveillance. Jesus-Nunez, No. 1:10-cr-00017-01, 2010 WL
2991229, at *3; see also Cuevas-Perez, 640 F.3d at 275
(dismissing as immaterial the increased accuracy of GPS
devices since real-time information is exactly the kind of
information that drivers make available by traversing public
roads). Every piece of data the GPS unit provided law
enforcement officers could have been otherwise obtained by a
police officer tracking Harry Katzins vehicle on foot or in his
squad car on a public street;20 by an officer keeping an eye on
20
See California v. Greenwood, 486 U.S. 35, 41

(1988) ([T]he police cannot reasonably be expected to avert
their eyes from evidence of criminal activity that could have
been observed by any member of the public.); Texas v.
Brown, 460 U.S. 730, 740 (1983) (plurality opinion) (The
general public could peer into the interior of Browns
automobile from any number of angles; there is no reason
44
the vehicle through use of a telescope or binoculars, or

utilizing a flashlight or spotlight so as to not lose the car
under the shadow of the night;21 or by an officer utilizing an
airplane or a helicopter to follow the vehicle along the public
roadways.22
[the officer] should be precluded from observing as an officer

what would be entirely visible to him as a private citizen.);
Katz v. United States, 389 U.S. 347, 351 (1967) (What a
person knowingly exposes to the public . . . is not a subject of
Fourth Amendment protection.).
21
See Brown, 460 U.S. at 73940 (plurality opinion)

(It is . . . beyond dispute that [the officers] action in shining
his flashlight to illuminate the interior of Browns car
trenched upon no right secured to the latter by the Fourth
Amendment.); United States v. Lee, 274 U.S. 559, 563
(1927) (For aught that appears, the cases of liquor were on
deck and, like the defendants, were discovered before the
motorboat was boarded. Such use of a searchlight is
comparable to the use of a marine glass or a field glass. It is
not prohibited by the Constitution.).
22
See Florida v. Riley, 488 U.S. 445, 448449, 45152

(1989) (an officer circl[ing] twice over respondent's property
in a helicopter at the height of 400 feet was not a search
because the police may see what may be seen from a public
vantage point where they have a right to be (alteration and
internal quotation marks omitted)); California v. Ciraolo, 476
U.S. 207, 21314 (1986) (Any member of the public flying
in this airspace who glanced down could have seen
everything that these officers observed.).
45
The efficiency or efficacy of an officers natural senses

often benefit from advances in technology. See Dow Chem.
Co. v. United States, 476 U.S. 227, 231 (1986) (changes in
technology not only enhance[] industrial process, and indeed
all areas of life, but they have also enhanced law
enforcement techniques). But [t]he mere fact that human
vision is enhanced by some form of technological advance,
by itself, does not give rise to constitutional problems. Id.
at 238; see also Silverman v. United States, 365 U.S. 505, 513
(1961) (Douglas, J., concurring) ([N]either should the
command of the Fourth Amendment be limited by nice
distinctions turning on the kind of electronic equipment
employed.). Again, [i]t is the exploitation of technological
advances that implicates the Fourth Amendment, not their
mere existence. Karo, 468 U.S. at 712. Nothing in the
Fourth Amendment prohibit[s] the police from augmenting
the sensory facilities bestowed upon them at birth with such
enhancement as science and technology afforded them in this
case. Knotts, 460 U.S. at 282. The information obtained
through use of the GPS was information otherwise observable
by the naked eye. See id. at 28182. The GPS unit simply
made it easier for the law enforcement officers to obtain. See
id. at 284 (Insofar as respondents complaint appears to be
simply that scientific devices such as beepers enabled police
to be more effective in detecting crime, it simply has no
constitutional foundation.). And at the time the officers here
acted, it was indubitable that Harry Katzin lacked any
reasonable expectation of privacy in the information the GPS
unit was procuring. See id at 281.23 Thus, even taking into
23
Today, the question remains open as to whether

Jones effectually abrogated Knottss conclusion that persons
lack any reasonable expectation of privacy in the information
46
consideration the technological difference between the

beepers used in Knotts and Karo and the GPS units used in
this case, the officers were clearly not exploit[ing] GPS
technology in a way so as to put them on notice that their
the GPS unit was procuring. The only question answered in
Jones was whether a search had occurred through the
installation and subsequent use of the GPS device. Thus, the
Fourth Amendment implications of the information obtained
by the GPS surveillance, alone, were not discussed. Jones did
state that Knotts noted the limited use which the
government made of the signals from [that] particular beeper;
and reserved the question whether different constitutional
principles may be applicable to dragnet-type law
enforcement practices of the type that GPS tracking made
possible [in that case]. Jones, 132 S. Ct. at 952 n.6 (citations
omitted). But Justice Scalias opinion for the majority
refrained from altering Knottss conclusion that the
information obtainedthe location of the automobile
carrying the [beeper] on public roads . . .had been
voluntarily conveyed to the public, and was therefore not a
search. Id. at 95152. Nonetheless, five justices wrote or
joined the concurring opinions in Jones, all of which seemed
to endorse the so-called mosaic theory expressed in
Maynardwhich would unequivocally limit the holding in
Knotts to apply in only short-term surveillance. See Orin
Kerr, The Mosaic Theory of the Fourth Amendment, 111
MICH. L. REV. 311, 326 (2012). This question does not need
to be answered today; but emphasizes the major shift caused
by Jones in Fourth Amendment law, and the vastly different
legal regime under which the law enforcement officers here
were acting.
47
actions were unconstitutional.24 See Cuevas-Perez, 640 F.3d

at 27980 (Flaum, J., concurring) (opining before Jones that
[t]he holding of Knotts is that a person has no expectation of
privacy in movements from one place to another on public
24
The majority concludes otherwise, alluding that my

preferred disposition would leave [persons] at the mercy of
advancing technology. Maj. Op. at 48 n.20 (citing Kyllo v.
United States, 533 U.S. 27, 3536 (2001)). This case is
categorically distinct from Kyllo. In Kyllo, the officers
utilized technology to observe infrared radiation, which is
otherwise invisible to the naked eye. 533 U.S. at 29.
Furthermore, the officers utilized that technology in order to
determine the relative temperature of the interior of a home,
an area entitled to almost absolute protection under the Fourth
Amendment. Id. at 2930; see also Florida v. Jardines, 569
U.S. __, 133 S. Ct. 1409, 1414 (2013) ([W]hen it comes to
the Fourth Amendment, the home is first among equals.). In
contrast, the use of the GPS device in this case provided
information otherwise observable by the naked eye on a
public street. What is more, although the Court found it
foolish to contend that the degree of privacy secured to
citizens by the Fourth Amendment has been entirely
unaffected by the advance of technology, Kyllo made much
of the fact that the technology used in that case was not in
general public use. 533 U.S. at 3334. Alternatively, GPS
technology is widespread, and one need look only on the
dashboard of his vehicle or the screen of his cellular
telephone to spot one. Kyllos concerns, of course, arise in all
Fourth Amendment cases dealing with advanced technology.
But it is safe to say that those concerns are not implicated by
out facts.
48
roads; by its terms, the holding is indifferent to the

technology used to observe those movements).
Nor does the existence of United States v. Maynard,
615 F.3d 544 (D.C. Cir. 2010) affect the officers reasonable
belief that their conduct was lawful. First, the Maynard
holding was based on the fact that the GPS surveillance
conducted in that case lasted for four weeks, which allowed
law enforcement to obtain information not revealed by shortterm surveillance. See Maynard, 615 F.3d at 562; CuevasPerez, 640 F.3d at 274 ([T]he Maynard court repeatedly
distinguished the surveillance at issue there from surveillance
during a single journey.). Conversely, the GPS tracking in
this case lasted for only two days, (see Appendix at 11215,
14350.), and Appellees make no argument that the
information obtained by the GPS device reveal[ed] more
about their personal lives than does any individual trip
viewed in isolation. Maynard, 615 F.3d at 562.25 Besides,
25
The majority claims this is a distinction without a

point, because when the police attached their GPS device to
Harry Katzins van, they had no way of knowing when the
next Rite Aid robbery would take place; thus characterizing
the GPS tracking here as a long-term surveillance project.
See Maj. Op. at 50 & n.22. But for purposes of whether a
Fourth Amendment violation occurred it matters not what law
enforcement officers could have done but what they did do.
See Dow Chem. Co., 476 U.S. at 238 n.5 (Fourth
Amendment cases must be decided on the facts of each case,
not by extravagant generalizations. [W]e have never held
that potential, as opposed to actual, invasions of privacy
constitute searches for purposes of the Fourth Amendment.
(alteration in original) (quoting Karo, 468 U.S. at 712)); cf.
49
Knotts gave scant reason to think that the duration of the

tracking in that case was material to the Courts reasoning.
Sparks, 711 F.3d at 67.26
United States v. Jacobsen, 466 U.S. 109, 122 (1984) (The

concept of an interest in privacy that society is prepared to
recognize as reasonable is, by its very nature, critically
different from the mere expectation, however well justified,
that certain facts will not come to the attention of the
authorities.).
26
The Knotts Court did say, however, that if dragnettype law enforcement practices such as twenty-four hour
surveillance of any citizen of this country . . . without judicial
knowledge or supervision, should eventually occur, there
will be time enough then to determine whether different
constitutional principles may be applicable. Knotts, 460
U.S. at 28384. But merely acknowledging that different
constitutional principles may be applicable does not imply
what those principles may be and how they impact the
relevant analysis. See Shelby Cnty. v. Holder, 570 U.S. __,
133 S. Ct. 2612, 2637 n.3 (2013) (Ginsburg, J., dissenting)
(Acknowledging the existence of serious constitutional
questions does not suggest how those questions should be
answered. (citation omitted)). Nonetheless, I seriously doubt
that the dragnet-type law enforcement practices referred to
by the Knotts Court, whatever they may be, are akin to what
occurred in this case, where law enforcement officers had
evidence to suggest that Harry Katzin was a serious criminal;
evidence his attorney admitted at argument gave rise to
probable cause. (See Oral Arg. Trans. at 43:716.)
50
Furthermore, consider this hypothetical: Imagine, under facts

identical to our case, the D.C. Circuits Maynard decision
was, instead, the only case holding that GPS use was not a
search and did not require a warrant. If, under those
circumstances, the officers claimed to rely only upon
Maynard for a reasonable belief that their conduct complied
with the Constitution, that consideration would weigh more
toward a finding of law enforcement culpability. But, here,
we are presented with the alternative, and Maynard was the
only holding (i.e., not a dissent or concurring opinion) from
any court at the time the officers executed the warrantless
GPS surveillance that considered their conduct illegal. As a
result, the fact that Appellees are pointing to Maynard as the
only case that said the law enforcement officers could not do
what they did is a consideration that weighs in the officers
favor.
****
Under the majoritys rule, where law enforcement
officers engage in extrapolat[ion] [of] their own
constitutional rule, or where officers assum[e] that their
own self-derived rule sanction[s] their conduct, those
officers act with sufficient culpablity so as to justify
application of the exclusionary rule. Maj. Op. at 51. I agree
that [t]he justifications for the good-faith exception [may]
not extend to situations in which police officers have
interpreted ambiguous precedent. Sparks, 711 F.3d at 67
(quoting Davis, 598 F.3d at 1267). But that is not the case
here, where new developments in the law have upended the
settled rules on which police relied. Id. at 68.
51
Before Jones, all but one federal court of appeals to

address the issue unequivocally concluded that Knotts, Karo,
and other relevant Supreme Court precedent sanctioned the
law enforcement conduct that occurred here. These Fourth
Amendment principles, upon which the law enforcement
officers relied in this case, were settled maxims of
constitutional jurisprudence, some of them governing law
enforcement conduct for decades. The majority, viewing this
case through Jones-colored lenses, rules with the benefit of a
hindsight that was unavailable to the officers here.
United States v. Jones changed things; and changed
them in a way very fewif any at allpredicted. The
exclusionary rule does not require us to punish the law
enforcement officers here for failing to predict that sea
change.27 The District Court below put it quite aptly:
27
I have serious reservations about the implications of

the majoritys ruling in this case. Nevertheless, I admit my
position might encourage some law enforcement officers to
bend and twist existing precedent and legal principles to their
breaking points. In some cases, law enforcement reliance
could be marginal at best.
But I have confidence that courts are aptly suited to
discern the true good-faith actors from the bad; and that, in
circumstances such as those presented in this case, we will be
able to definitively answer the question of whether law
enforcement officers were acting with objectively reasonable
good faith. Rulings that officers come up short will help
deter undesirable law enforcement conduct.
52
[T]he Court hastens to emphasize that it has no

concern that the prosecutorial and law
enforcement personnel here were undertaking
their work in this investigation and prosecution
in a calculated or otherwise deliberately cavalier
The majority recognizes that applying existing
precedential framework to subtle factual permutations is
something that police officersand other law enforcement
personneldo all the time. Maj. Op. at 57 n.27. But while
insisting that its opinion does not curtail such practices, the
majority punishes the law enforcement officers in this case
for performing that exact practice. There may not have been
a case from our Circuit or the Supreme Court specifically
detailing what the officers should have done in the particular
circumstances presented here. But there were cases from the
Supreme Court that came very close; close enough, in fact,
that some of our sister courts found them to be controlling as
precedents in situations similar to the case at bar.
Obviously there is not enough time, history, or reporter
space to answer every single Fourth Amendment question.
As a result, the exclusionary rule has developed to provide a
remedy on the backend. Often the hurried judgments of an
officer, however well intentioned, simply do not comply with
constitutional rights. But as a matter of Fourth Amendment
policy, I would rather allow the officer more freedom in
performing his jobparticularly where the answer to the
appl[ication of] existing precedential framework to subtle
factual permutations is so readily apparent as it was in this
casethan protect courts from overly burdensome
suppression motions. Ruling on suppression motions is part
of our job.
53
or casual manner in the hopes of just meeting

the outer limits of the constitutional contours of
the Katzins rights. Indeed, these actors could
well profess surprise at the specific outcome of
Jones.
United States v. Katzin, Crim. No. 11-226, 2012 WL
1646894, at *10 n.15 (E.D. Pa. May 9, 2012). Regardless of
this seemingly dispositive conclusion, the District Court
found, and the majority now affirms, that the exclusionary
rule requires suppression of the evidence obtained by such
non-culpable law enforcement conduct.
Doing so renders the exclusionary rule a strictliability regime, something which it emphatically is not. See
Davis, 131 S. Ct. at 2429. The exclusionary rule is a
prudential doctrine, id. at 2426 (quoting Scott, 524 U.S. at
363), which requires a rigorous weighing of [the] costs and
deterrence benefits, id. at 2427, lest a guilty and possibly
dangerous defendant[] go[es] free, Herring, 555 U.S. at 141.
As a society, we willingly swallow that bitter pill when we
must. Davis, 131 S. Ct. at 2427. But under the circumstances
present in this case, I do not find the law enforcement conduct
to be sufficiently culpable so that the benefit from deterring
that conduct is worth the price paid by the justice system,
John, 654 F.3d at 417, even if it might create a marginal
incentive for officers to err on the side of constitutional
behavior. United States v. Johnson, 457 U.S. 537, 561
(1982). Marginal deterrence is not the trigger of the
exclusionary rule, Herring, 555 U.S. at 141; law enforcement
culpability, and, thus, the opportunity for appreciable
deterrence is. Leon, 468 U.S. at 909; John, 654 F.3d at 417.
In consequence, because I find that the law enforcement
54
officers here lacked the requisite culpability in their actions so

as to justify application of the exclusionary rule, I respectfully
dissent from the majoritys conclusion to the alternative. I
would reverse the District Court below.
55
63rd Legislature
HB0603
AN ACT PROVIDING THAT A GOVERNMENT ENTITY MUST OBTAIN A SEARCH WARRANT PRIOR TO
OBTAINING LOCATION INFORMATION OF AN ELECTRONIC DEVICE; AND PROVIDING EXCEPTIONS,
DEFINITIONS, AND A CIVIL PENALTY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Location information privacy -- civil penalty. (1) Except as provided in subsection (2), a
government entity may not obtain the location information of an electronic device without a search warrant issued
by a duly authorized court.
(2) A government entity may obtain location information of an electronic device under any of the following
circumstances:
(a) the device is reported stolen by the owner;
(b) in order to respond to the user's call for emergency services;
(c) with the informed, affirmative consent of the owner or user of the electronic device; or
(d) there exists a possible life-threatening situation.
(3) Any evidence obtained in violation of this section is not admissible in a civil, criminal, or administrative
proceeding and may not be used in an affidavit of probable cause in an effort to obtain a search warrant.
(4) A violation of this section will result in a civil fine not to exceed $50.
Section 2. Definitions. As used in [section 1] and this section, the following definitions apply:
(1) "Electronic communication service" means a service that provides to users of the service the ability
to send or receive wire or electronic communications.
(2) "Electronic device" means a device that enables access to or use of an electronic communication
service, remote computing service, or location information service.
(3) "Government entity" means a state or local agency, including but not limited to a law enforcement
entity or any other investigative entity, agency, department, division, bureau, board, or commission or an
-1-
Authorized Print Version - HB 603

HB0603
individual acting or purporting to act for or on behalf of a state or local agency.
(4) "Location information" means information concerning the location of an electronic device that, in
whole or in part, is generated or derived from or obtained by the operation of an electronic device.
(5) "Location information service" means the provision of a global positioning service or other mapping,
locational, or directional information service.
(6) "Remote computing service" means the provision of computer storage or processing services by
means of an electronic communications system.
Section 3. Codification instruction. [Sections 1 and 2] are intended to be codified as an integral part
of Title 46, chapter 5, and the provisions of Title 46, chapter 5, apply to [sections 1 and 2].
- END -
-2-

HB0603
I hereby certify that the within bill,

HB 0603, originated in the House.
Chief Clerk of the House
Speaker of the House
Signed this
of
day
, 2013.
President of the Senate
Signed this
of
day
, 2013.
-3-

HOUSE BILL NO. 603

INTRODUCED BY ZOLNIKOV
AN ACT PROVIDING THAT A GOVERNMENT ENTITY MUST OBTAIN A SEARCH WARRANT PRIOR TO
OBTAINING LOCATION INFORMATION OF AN ELECTRONIC DEVICE; AND PROVIDING EXCEPTIONS,
DEFINITIONS, AND A CIVIL PENALTY.
AN ACT
1
2
RELATING TO TORT CLAIMS; EXPANDING THE APPLICATION OF THE
SPACE FLIGHT INFORMED CONSENT ACT; AMENDING THE CIRCUMSTANCES
UNDER WHICH A SPACE FLIGHT ENTITY IS LIABLE UNDER THE SPACE
FLIGHT INFORMED CONSENT ACT; EXTENDING THE SUNSET PROVISION
OF THE ACT.
7
8
9
10
11
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1.
Section 41-14-1 NMSA 1978 (being Laws 2010,
Chapter 8, Section 1) is amended to read:

"41-14-1.
SHORT TITLE.--Chapter 41, Article 14
12
NMSA 1978 may be cited as the "Space Flight Informed Consent
13
Act"."
14
15
16
17
18
SECTION 2.

"41-14-2.
DEFINITIONS.--As used in the Space Flight
Informed Consent Act:

A.
"crew" means an employee of a space flight
19
entity who performs activities in the course of that
20
employment directly relating to the launch, reentry or other
21
operation of or in a launch vehicle or reentry vehicle that
22
carries human beings;
23
B.
"launch" means placing or trying to place a
24
launch vehicle or reentry vehicle and any payload, crew or
25
participant in a suborbital trajectory, in earth orbit in
SB 240
Page 1
outer space or otherwise in outer space.
activities involved in the preparation of a launch vehicle or
payload for launch when those activities take place at a
launch site in New Mexico;

C.
"launch vehicle" means:

(1)
6
7
"Launch" includes
a vehicle built to operate in, or place
a payload or human beings in, outer space; or

(2)
8
D.
a suborbital rocket;
"participant" means an individual who is not
10
crew and who is carried within a launch vehicle or reentry
11
vehicle;
12
E.
"participant injury" means an injury sustained
13
by a participant, including bodily injury, emotional
14
distress, death, property damage or any other loss arising
15
from the participant's participation in space flight
16
activities;
17
F.
"payload" means an object that a person
18
undertakes to place in outer space by means of a launch
19
vehicle or reentry vehicle, including components of the
20
vehicle specifically designed or adapted for that object;
21
G.
"reenter" or "reentry" means to purposefully
22
return or attempt to return a reentry vehicle and its
23
payload, crew or participants from earth orbit or from outer
24
space to earth;
25
H.
"reentry vehicle" means a vehicle, including a
SB 240
Page 2
reusable launch vehicle, designed to return from earth orbit
or outer space to earth substantially intact;
I.
"space flight activities" means:

(1)
activities, including crew training,
involved in the preparation of a launch vehicle, payload,
crew or participant for launch;
(2)
the conduct of a launch;
(3)
activities, including crew training,
9
10
involved in the preparation of a reentry vehicle and payload,

crew or participant; and
(4)
11
12
J.
the conduct of a reentry; and
"space flight entity" means:

(1)
13
a public or private entity holding a
14
United States federal aviation administration launch,
15
reentry, operator or launch site license, permit or other
16
authorization for space flight activities; or

(2)
17
a manufacturer or supplier of
18
components, services or vehicles used by the entity that has
19
been reviewed by the United States federal aviation
20
administration as part of issuing such a license, permit or
21
authorization."
22
SECTION 3.
23
24
25

"41-14-3.
A.
LIMITED LIABILITY.-Except as provided in Subsection B of this
SB 240
Page 3
section, a space flight entity is not liable for injury to or
death of a participant resulting from the inherent risks of
space flight activities so long as the warning contained in
Section 41-14-4 NMSA 1978 is distributed and signed as
required.
section, a participant or participant's representative may
not maintain an action against or recover from a space flight
entity for the loss, damage or death of the participant
resulting exclusively from any of the inherent risks of space
10
11
Except as provided in Subsection B of this
flight activities.
B.
Subsection A of this section does not prevent
12
or limit the liability of a space flight entity if the space
13
flight entity:
(1)
14
commits an act or omission that
15
constitutes willful, wanton or reckless disregard for the
16
safety of the participant and that act or omission
17
proximately causes injury, damage or death to the
18
participant;
(2)
19
has actual knowledge or reasonably
20
should have known of a dangerous condition on the land or in
21
the facilities or equipment used in the space flight
22
activities and the danger proximately causes injury, damage
23
or death to the participant; or

(3)
24
25
C.
intentionally injures the participant.
A space flight entity shall present to and
SB 240
Page 4
file with the spaceport authority a certificate of insurance
coverage in the amount of at least one million dollars
($1,000,000) that covers liability by the space flight entity
for all space flight activities.
fails to maintain the insurance requirements of this section
shall receive any of the protections afforded by the Space
Flight Informed Consent Act.

D.
8
9
No space flight entity that
The limitation on legal liability provided to
a space flight entity by the Space Flight Informed Consent
10
Act is in addition to any other limitation of legal liability
11
otherwise provided by law."
12
13
14
15
16
SECTION 4.
Laws 2010, Chapter 8, Section 5 is amended
to read:
"DELAYED REPEAL.--The Space Flight Informed Consent Act
is repealed effective July 1, 2021."
SB 240
Page 5
17
18
19
20
21
22
23
24
25
H.B.ANo.A1791
AN ACT
1
2
relating
to
the
facilitation
activities in this state.
and
operation
of
space
flight
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONA1.AASection 100A.001, Civil Practice and Remedies
Code, is amended to read as follows:
Sec.A100A.001.AADEFINITIONS.
In this chapter:
(1)AA"Launch" means a placement or attempted placement
of a launch vehicle [or rocket] and spacecraft, if any, [payload,
10
crew, or space flight participant] in a suborbital trajectory,
11
earth orbit, or outer space, including activities involved in the
12
preparation of a launch vehicle or spacecraft [payload] for launch.

(1-a)AA"Launch
13
vehicle"
means
any
vehicle
and
its
14
stages or components designed to operate in or place spacecraft, if
15
any, in a suborbital trajectory, in earth orbit, or in outer space.
16
(2)AA"Reentry" means a [purposeful] return or attempt
17
to return of a launch vehicle, reentry vehicle, or spacecraft [and
18
the
19
suborbital trajectory, from earth orbit, or from outer space to
20
earth, including activities involved in the recovery of a launch
21
vehicle, reentry vehicle, or spacecraft.
payload,
the
crew,
or
space
flight
participant]
from
22
(2-a) "Reentry vehicle" means any vehicle, including
23
its stages or components, or spacecraft designed to return from
24
earth orbit or outer space to earth, or a reusable launch vehicle
1
H.B.ANo.A1791
1
designed
substantially intact.
return
from
earth
orbit
or
outer
space
to
earth,
(2-b)AA"Spacecraft" has the meaning assigned by Section
3
4
to
507.001, Local Government Code.

(3)AA"Space
flight
activities"
means
activities
and
training in any phase [all phases] of preparing for and undertaking
space flight, including:

(A)AAthe
8
9
research,
development,
testing,
or
manufacture of a launch vehicle, reentry vehicle, or spacecraft;
10
(B)AAthe preparation of a launch vehicle, reentry
11
vehicle, payload, spacecraft, crew, or space flight participant for
12
launch, space flight, and reentry;
13
(C)A[(B)]AAthe conduct of the launch;
14
(D)A[(C)]AAconduct occurring between the launch
15
and reentry;
16
(E)A[(D)]AAthe preparation of a launch vehicle,
17
reentry
18
participant for reentry;
vehicle,
payload,
spacecraft,
crew,
or
space
flight
19
(F)A[(E)]AAthe conduct of reentry and descent;
20
(G)A[(F)]AAthe conduct of the landing; and
21
(H)A[(G)]AAthe conduct of postlanding recovery of
22
a launch vehicle, reentry vehicle, payload, spacecraft, crew, or
23
space flight participant.
24
(4)AA"Space flight entity" means a person who conducts
25
space flight activities and who, to the extent required by federal
26
law, has obtained the appropriate Federal Aviation Administration
27
license or other authorization, including safety approval and a
2
H.B.ANo.A1791
1
payload determination.AAThe term includes:

(A)AAa
manufacturer
or
supplier
of
components,
services, spacecraft, launch vehicles, or reentry vehicles used by
the entity and reviewed by the Federal Aviation Administration as
part of issuing the license or other authorization; [and]

(B)AAan
employee,
officer,
director,
owner,
stockholder, member, manager, advisor, or partner of the entity,
manufacturer, or supplier;
(C)AAan owner or lessor of real property on which
10
space flight activities are conducted, including a municipality,
11
county,
12
corporation under Section 507.001, Local Government Code, in this
13
state with a contractual relationship with a space flight entity;
14
and
political
subdivision,
or
spaceport
development
15
(D)AAa municipality, county, economic development
16
organization, or other political subdivision in the territory or
17
extraterritorial jurisdiction of which space flight activities are
18
conducted.
19
(5)AA"Space flight participant" means an individual,
20
who is not crew, carried aboard a spacecraft, launch vehicle, or
21
reentry vehicle.
22
(6)AA"Space flight participant injury" means an injury
23
sustained by a space flight participant, including bodily injury,
24
emotional
25
other loss arising from the individual s participation in space
26
flight activities.
27
distress,
death,
disability,
property
damage,
or
any
(7)AA"Crew" means a human being who performs activities
3
H.B.ANo.A1791
1
relating to the launch, reentry, or other operation of or in a
spacecraft, launch vehicle, or reentry vehicle.
3
4
5
SECTIONA2.AASection 100A.002, Civil Practice and Remedies

Sec.A100A.002.AALIMITED LIABILITY.
(a)
Except as provided
by this section [Subsection (b)], a space flight entity is not
liable to any person for damages resulting from nuisance arising
from testing, launching, reentering, or landing or subject to any
claim for nuisance arising from testing, launching, reentering, or
10
11
landing.
(b)AAExcept
as
provided
by
this
section,
space
flight
12
entity is not liable to any person for a space flight participant
13
injury or damages arising out of [the] space flight activities
14
[participant injury] if the space flight participant has signed the
15
agreement required by Section 100A.003 and given written consent as
16
required by 51 [49] U.S.C. Section 50905 [70105].
17
18
[(b)]AAThis subsection [section] does not limit liability

for a space flight participant [an] injury:
19
(1)AAproximately caused by the space flight entity s
20
gross negligence evidencing wilful or wanton disregard for the
21
safety of the space flight participant; or
22
23
24
25
26
27
(2)AAintentionally caused by the space flight entity.

(c)AAThis section precludes injunctive relief with respect
to space flight activities.
(d)AAThis section does not:
(1)AAlimit liability for breach of a contract for use of
real property by a space flight entity; or
4
H.B.ANo.A1791
(2)AApreclude
1
2
by
federal
or
state
SECTIONA3.AASection 100A.003(b), Civil Practice and Remedies

(b)AAAn
5
6
action
governmental entity to enforce a valid statute or regulation.
3
4
an
agreement
under
Subsection
(a)
is
considered
effective and enforceable if it is:
(1)AAin writing;
(2)AAin a document separate from any other agreement
between the space flight participant and the space flight entity
10
other than a different warning, consent, or assumption of risk
11
statement;
12
(3)AAprinted in not less than 10-point bold type; [and]
13
(4)AAsigned by the space flight participant on behalf
14
of
the
space
15
administrators,
16
assignees of the space flight participant; and
17
participant
representatives,
and
any
heirs,
attorneys,
executors,
successors,
and
(5)AAsigned by a competent witness.
18
19
flight
SECTIONA4.AASections 507.001(2) and (3), Local Government

Code, are amended to read as follows:
20
(2)AA"Spacecraft" means any object and its components
21
designed to be launched for operations in a suborbital trajectory,
22
in earth orbit, or in outer space.
23
payload, an object carrying crew or a space flight participant, and
24
any
25
specifically
26
satellite].
27
subcomponents
of
designed
the
or
The term includes a satellite, a
launch
adapted
vehicle
for
that
or
reentry
object
vehicle
[includes
(3)AA"Spaceport" includes:
5
H.B.ANo.A1791
1
(A)AAan area intended to be used for space flight
activities, as defined by Section 100A.001, Civil Practice and
Remedies Code [to launch or land a spacecraft];

(B)AAa spaceport building or facility located in
4
5
[on]
vehicle, reentry vehicle, or spacecraft launching or landing area;
an
area
reasonably
proximate
[appurtenant]
to
launch
(C)AAan area reasonably proximate [appurtenant]
to a launch vehicle, reentry vehicle, or spacecraft launching or
landing area that is intended for use for a spaceport building or
10
facility; and
11
(D)AAa right-of-way related to a launch vehicle,
12
reentry vehicle, or spacecraft launching or landing area, building,
13
facility, or other area that is reasonably proximate [appurtenant]
14
to a launching or landing area.

SECTIONA5.AASection 481.0069(d), Government Code, is amended
15
16
to read as follows:
(d)AAMoney
17
18
the
spaceport
trust
fund
may
not
be
spent
unless the office certifies to the comptroller that:
19
20
in
(1)AAa
viable
business
entity
has
been
established
that:
21
(A)AAhas a business plan that demonstrates that
22
the entity has available the financial, managerial, and technical
23
expertise and capability necessary to launch and land a reusable
24
launch vehicle or spacecraft; and
25
26
27
(B)AAhas committed to locating its facilities at a

spaceport in this state;
(2)AAa
development
corporation
for
spaceport
6
H.B.ANo.A1791
1
facilities created under Chapter 507, Local Government Code, has
established a development plan for the spaceport project and has
demonstrated the financial ability to fund [secured] at least 75
[90] percent of the funding required for the project; and
(3)AAthe spaceport or launch operator, if required by
federal law, has obtained or applied for the appropriate Federal
Aviation
authorization.
9
10
Administration
license
or
other
appropriate
SECTIONA6.AASection 42.01, Penal Code, is amended by adding

Subsection (g) to read as follows:
11
(g)AANoise arising from space flight activities, as defined
12
by Section 100A.001, Civil Practice and Remedies Code, if lawfully
13
conducted, does not constitute "unreasonable noise" for purposes of
14
this section.
15
SECTIONA7.AAThe changes in law made by this Act apply only to
16
space flight activities that occur on or after the effective date of
17
this Act.
18
date of this Act are governed by the law in effect immediately
19
before that date, and that law is continued in effect for that
20
purpose.
21
Space flight activities that occur before the effective
SECTIONA8.AAThis Act takes effect September 1, 2013.
7
H.B.ANo.A1791
______________________________
______________________________
AAAAPresident of the Senate
Speaker of the HouseAAAAAA
I certify that H.B. No. 1791 was passed by the House on April
30, 2013, by the following vote:AAYeas 142, Nays 0, 1 present, not
voting.
______________________________
Chief Clerk of the HouseAAA
I certify that H.B. No. 1791 was passed by the Senate on May
20, 2013, by the following vote:AAYeas 31, Nays 0.
______________________________
Secretary of the SenateAAAA
APPROVED:AA_____________________
AAAAAAAAAAAAAAAAAAAADateAAAAAAAAAA
AAAAAAAAAAA_____________________
AAAAAAAAAAAAAAAAAAGovernorAAAAAAA
8

Space Law Documents 2013 Volume2 - FINAL2

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Space Law Documents 2013 Volume2 - FINAL2

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Space Law Documents 2013

volume 2: United States Documents

Government Accountability Office, Briefing Slides: Air Force

Government Accountability Office, Bid Protest Decision

Pub. L. 112-239: National Defense Authorization Act of 2013,

Pub. L. 112-273: Space Exploration Sustainability Act (Jan. 14,

S. Res. 24: Commemorating the 10-year anniversary of the loss

NASA, NASA Information Security Protection, 78 Fed. Reg. 5116

NOAA, Taking and Importing Marine Mammals; Taking Marine

FCC, Amendment of the Commissions Rules To Allocate

FCC, Operation of Wireless Communications Services in the 2.3

Department of State, Additional Designation of A North Korean

Order 13382, 78 Fed. Reg. 13139 (Feb. 26, 2013)

FCC, Earth Stations Aboard Aircraft Communicating With

FCC, Guidance on Obtaining Experimental Authorizations for

NASA, Space Act Agreement between The National Aeronautics

Department of Defense, Directive-Type Memorandum (DTM)

FAA, Office of Commercial Space Transportation; Notice of

FAA, Waiver of 14 CFR 437.29 and 437.55(a) for Scaled

FCC, Establishment of Rules and Policies for the Digital Audio

NASA, Semiannual Regulatory Agenda, 78 Fed. Reg. 44330 (July

FAA, Letter on Paragon World View Vehicle (Sept. 26, 2013)

White House, National Space Transportation Policy (Nov. 21,

FAA, Interpretation Concerning Involvement of NASA

HB 0603: An Act Providing that a Government Entity Must

S.B. 240: Space Flight Informed Consent Act (Mar. 8, 2013)

H.B. No. 1791: An act relating to the facilitation and operation of

United States Government Accountability Office

Space Law Documents 2013, v. 2 - 1

GAO-13-317R Launch Services New Entrant Certification Guide

Space Law Documents 2013, v. 2 - 2

GAO-13-317R Launch Services New Entrant Certification Guide

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GAO-13-317R Launch Services New Entrant Certification Guide

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Air Force Launch Services

GAO-13-317R Launch Services New Entrant Certification Guide

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Objective 1: Air Force Implementation of the Guide

Objective 2: New Entrant Perspectives

Agency Comments and Our Evaluation

Scope and Methodology

Comments from the Department of Defense

GAO-13-317R Launch Services New Entrant Certification Guide

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GAO-13-317R Launch Services New Entrant Certification Guide

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GAO-13-317R Launch Services New Entrant Certification Guide

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GAO-13-317R Launch Services New Entrant Certification Guide

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GAO-13-317R Launch Services New Entrant Certification Guide

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In March 2011, the agencies signed a memorandum of understanding recognizing

GAO-13-317R Launch Services New Entrant Certification Guide

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GAO-13-317R Launch Services New Entrant Certification Guide

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GAO-13-317R Launch Services New Entrant Certification Guide

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The NECG is closely based on NASAs Policy Directive (NPD) 8610.7,

GAO-13-317R Launch Services New Entrant Certification Guide

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