Following on its advanced notice of proposed rulemaking for the regulation of remote sensing satellites, the Department of Commerce’s National Oceanic and Atmospheric Administration (NOAA) released a notice of proposed rulemaking on the same topic on May 15. NOAA views this NPRM as a complete overhaul of its regulations, and it responds to the White House directive to streamline regulations. The proposed rule would make:
several changes based on specific concepts supported by the public comments to the ANPRM, including the following:•Updates and clarifies the definition of ‘‘remote sensing,’’ with the result that many cameras used today in space for technical purposes will not require a license; •Establishes a review process and license conditions based on potential risk, separating ‘‘high-risk’’ systems from ‘‘low-risk’’ systems, with the result that, based on a review of past applications, approximately 40 percent of future systems would likely be considered ‘‘low-risk’’;•Incorporates only those conditions specified in the rule in all licenses except for proposed systems that are novel and pose a high risk, estimated, based on a review of past applications, at under 20 percent of systems, thereby eliminating the uncertainty, additional review time, and regulatory burden imposed by individualized interagency review for all non-novel applications;•Requires the periodic update of the low-risk category criteria, standard license conditions, and interagency review processes via public notice-and- comment rulemaking, thereby increasing transparency and regulatory certainty;•Reduces the application review time to 60 days for low-risk systems and 90 days for high-risk systems, and eliminates the current practice of ‘‘clock stoppages’’ for review of applications; and•Reduces compliance burdens in several ways, such as:Reducing the number and complexity of license conditions, including eliminating the requirement to offer unenhanced data to the U.S. Government before deleting (purging) data;Significantly lessens paperwork burdens by reducing the information requested in the application and replacing audits with certifications; andIncorporating all operating requirements into a single license document.Jurisdiction and applicability. NOAA’s proposed requirements would apply to private remote sensing space systems operated by all entities, whether commercial, non-profit, or academic, who are United States citizens, as defined in the proposed rule, or foreign entities that would operate a private remote sensing space system from the United States. The requirements would not apply to U.S. Government remote sensing systems, such as those operated by NASA or NOAA itself.
Other planets. NOAA would define ‘‘remote sensing space system’’ to include missions to conduct remote sensing from an orbit of any celestial body. This expands the reach of NOAA’s regulations, because currently they only apply to systems capable of actively or passively sensing the Earth’s surface, from space.
NOAA acknowledged that its statute is not clear on this question. 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.” 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.
In other words, the statute–which is the document that tells NOAA what Congress wants it to do–defines one thing (land remote sensing), but requires a license for something it didn’t define (private remote sensing). To date, NOAA has interpreted its authority in a more limited fashion, namely, to remote sensing of the Earth. Now, in response Space Policy Directive-2’s streamlining initiative, NOAA would expand the scope of its reach from Earth to remote sensing from orbit of any celestial body. It does so on the basis that it may not exclude from regulation something that Congress told it to regulate. (Persons drafting the many versions of “mission authorization” should keep this in mind before saying that, of course, the executive branch wouldn’t require a license for something banal.)
Given that the ambiguous statutory language makes its current interpretation reasonable, it seems unnecessary to change interpretations now. This may be particularly unnecessary given that other celestial bodies contain no nation states jealous of their privacy and sovereignty, and no military facilities protecting national defense secrets. Given that no one is there, will all remote sensing of the Moon and other celestial bodies fall into NOAA’s newly proposed low risk category? One would hope, but I suspect it will be considered novel and thus high risk.
Launch vehicle cameras. Here, NOAA did streamline its oversight. In response to comments to its ANPRM NOAA agreed that cameras attached to launch vehicle did not require a remote sensing license:
In the proposed rule, the definition of ‘‘remote sensing’’ excludes data from an instrument that is physically attached to the primary object being sensed, because this sensing is not ‘‘remote.’’ This updated definition has the result of excluding many cameras used today in space for technical purposes, including cameras attached to second-stage launch vehicles, where the camera primarily images the launch vehicle itself; and cameras primarily viewing a solar array deploying on a spacecraft. Therefore, any cameras falling under the exclusion in the revised definition would not need a license.