NOAA’s ANPRM for Remote Sensing Licensing is an Opportunity for Comment

On Friday, June 29, 2018, the National Oceanic and Atmospheric Administration (NOAA) published an Advanced Notice of Proposed Rulemaking (ANPRM) in the Federal Register for its licensing of private remote sensing satellite operations.  It requested comments from the public, including industry, by August 28, 2018.

Congress is looking at changing NOAA’s governing statute to reform the way NOAA regulates private space remote sensing systems.  Nonetheless, NOAA sees opportunities for streamlining its regulations itself within the boundaries of the current authority given it by Congress.  NOAA does not, however, explain what legal authority it may have for imposing insurance requirements.

Background.  In Subchapter VI of Title 51, National and Commercial Space Programs (51 U.S.C. 60121 et seq.,) Congress requires that anyone operating a remote sensing system in space must obtain a license to do so from the Secretary of Commerce.  The Secretary has delegated this task to NOAA.  NOAA carries out its role under the regulations it created to implement the law Congress passed.  The regulations may be found in Title 15, part 960 of the Code of Federal Regulations.  NOAA last updated its regulations in 2006.

NOAA is considering a rulemaking to change its regulations.  The Trump Administration has found that ensuring American industry leadership in remote sensing would best serve U.S. national security and foreign policy interests.   Accordingly, NOAA wants to relieve industry of any unnecessary regulatory burdens.  It wants input from the public, including industry, about ambiguities in the current regulations.  Some areas of concern include, among others:

NOAA’s regulations define a remote sensing system as one that includes “any device, instrument, or combination thereof, the space-borne platform upon which it is carried, and any related facilities capable of actively or passively sensing the Earth’s surface, including bodies of water, from space by making use of the properties of the electromagnetic waves, emitted, reflected, or diffracted by the sensed objects.”

Opportunity for Comment:  Because NOAA kicked off this process with an advanced notice of proposed rulemaking  (ANPRM) rather than the more common notice of proposed rulemaking (NPRM), industry and the rest of the public have a good opportunity to help inform NOAA’s thinking.

Statutory authority.  Although it acknowledges at the beginning of the notice that Congress is considering reform to NOAA’s ability to authorize and regulate remote sensing, some of NOAA’s ideas appear to get ahead of Congress.  One thing to remember is that Congress is the legislative branch.  It writes the laws.  NOAA can only carry out the laws.  Just as the FAA could not start regulating the meat packing industry merely because it has a good idea for doing so, NOAA may only perform the functions that Congress has charged it to carry out.  Congress frequently and regularly delegates broad swathes of its legislative power to regulatory agencies, but that makes it even more important for a regulator not to take on more duties than Congress gave it.

NOAA listed items that would appear to require a statutory change.  For example, NOAA asked whether it should “consider a license condition requiring licensees to obtain some level of insurance to cover [an operator’s] potential liabilities?”  A review of the statutory authority does not show that Congress gave NOAA any authority to impose insurance requirements on its licensees.  When Congress grants such authority, it looks like what it provided the FAA. Nor does the Liability Convention provide NOAA the necessary legislative authority.  The Liability Convention only spells out the U.S. government’s obligations in the event of an accident causing damages.  It does not address the obligations of private actors, so we need not even reach the question of whether the Convention might be self-executing with respect to private entities.

Another example might be if NOAA is considering  licensing operators who sense different spectral bands.  The authority–or lack of it–is more unclear.  On the one hand, the statute defines “land remote sensing” to mean “the collection of data which can be processed into imagery of surface features of the Earth from an unclassified satellite or satellites, other than an operational United States Government weather satellite.”  (Emphasis added).  The spectral bands likely do not satisfy the Congressional requirement that they be “surface features of the Earth.”   On the other hand, the licensing provisions in sections 60121 and 60122 of the statute address something different than “land” remote sensing.  They authorize the agency to license “private sector parties to operate private remote sensing space systems” and forbid any U.S. person from operating “any private remote sensing space system” without a license.  Might NOAA consider the operation of a private remote sensing system as broader than the statutorily defined “land remote sensing”?  The agency is asking for comment on how to define a private remote sensing space system.  NOAA’s notice says it wants to discuss changes to its regulations within the confines of its statutory authority.  Is it considering broadening its interpretation of its statutory mandate so as to license remote sensing of more than surface features of the Earth?  As the definition above shows, NOAA does not currently interpret its statute to extend beyond the surface of the Earth.

Other issues:  NOAA also raises other questions for commenters to address.  For instance, it seeks comment on whether it should reduce oversight of and requirements for systems that pose less risk:

Those systems categorized as posing only a de minimis risk would be subject to an expedited review process, less restrictive license conditions, and less burdensome compliance requirements (note: Comments are sought on factors potentially relevant for defining review categories and review processes for different categories (Topic 2, below), on license conditions (Topic 3), and on compliance requirements (Topic 4)). The Department seeks input on whether such a strategy is advisable, and if so, how to implement it.