NOAA’s Changes to its Remote Sensing Requirements

On May 20, 2020, The Department of Commerce’s (Commerce) National Oceanic and Atmospheric Administration (NOAA) changed its satellite remote sensing licensing rules by issuing a new part 960 to Title 15 of the Code of Federal Regulations (CFR).  The CFR  is where regulatory agencies house their regulations, and part 960 contains NOAA’s licensing requirements.

Because of the significant changes between Commerce’s original proposal and this final rule, the agency is providing an additional 30 days for public comment.

Abandoning the Moon.  In its original proposal, Commerce characterized its proposed new requirements as streamlined.  There was an exception.  Commerce’s ambitious jurisdictional expansion would have required remote sensing licenses for anyone capable of sensing the Moon or other celestial bodies.  Although it does not provide the reasons for its change of mind, Commerce acknowledges that it has now “reduced the scope of its jurisdiction over remote sensing in the orbit of celestial bodies other than Earth.”  This is an interesting statement to make.  Typically, Congress, not the agency, decides the scope of an agency’s jurisdiction.  However, as we see from the excerpt below, Commerce is confining its exercise of authority to what Congress statutorily defined as “land remote sensing,” namely, “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.”

After considering public comments and pertinent policy considerations, this definition [of remote sensing] now applies only to (1) remote sensing conducted when in orbit of the Earth, rather than in orbit of any celestial body; and (2) to collecting data that can be processed into imagery of the surface features of the Earth. This definition is based on the definition of ‘‘land remote sensing’’ found at 51 U.S.C. 60101(4). Therefore, systems that can only produce data that cannot be processed into Earth-surface imagery are not required to obtain a license under this final rule. For example, a system in Earth orbit designed to conduct NEI would likely be conducting remote sensing for the purpose of this rule, because the instruments used for such missions typically are capable of collecting data that can be processed into imagery of the surface features of the Earth. Please see ‘‘Jurisdiction,’’ § 960.2, for technical capabilities that are specifically not licensed under this final rule.

Categories.   In last year’s proposal, Commerce’s NOAA wanted to categorize remote sensing systems based on the risks they posed.  It would have applied different requirements to each category.  Because of commenter’s objections, NOAA will now categorize systems depending on whether the unenhanced data to be generated by the proposed system is already available in the market.  NOAA will not restrict American industry more than foreign competition.  This means that when a NOAA license applicant operates a system “capable only of producing unenhanced data substantially the same as unenhanced data available from sources not regulated by Commerce, such as foreign sources,” the system will be subject only to the bare minimum of conditions.  NOAA calls these Tier 1 systems.

Systems whose only competition consists of U.S. licensee will be subject to the same conditions as Tier 1, plus one requirement governing non-Earth imaging (NEI):  a licensee must obtain consent before imaging  an Artificial Resident Space Object (ARSO) from the owner, and notify the Secretary  five days before doing so.  NOAA may also impose limited-operations directives on these “Tier 2” licensees to limit data dissemination.

Lastly, Tier 3 systems will consists of those with a completely novel capability, such that no foreign or U.S. entity can produce substantially the same unenhanced data. Tier 3 systems will have the same standard conditions as Tier 2, including the requirements addressing resolved imaging of ARSO. Commerce may also impose other custom-tailored licensing conditions on Tier 3 systems.

Temporary Conditions.  NOAA originally proposed to codify a number of secret licensing restrictions known only to the U.S. government and NOAA’s licensees.  Industry commenters objected that capturing these requirements in regulations that rarely get changed would disadvantage industry economically.  NOAA agreed. NOAA will now eliminate many of the permanent license conditions in current licenses and appendices, including those in the proposed rule, and typically keep only permanent license conditions required by the Land Remote Sensing Policy Act or other laws. Further conditions could be included in a license if an application proposes to collect entirely novel unenhanced data not available from any source. In this limited case, Commerce would work with the Departments of Defense or State and the applicant, to craft temporary, narrowly tailored license conditions. These conditions would remain in effect for one to three years.

Temporary conditions will allow the U.S. Government time to adapt its own operations to novel technologies.  Foreign space-based capabilities are in a constant state of improvement, which forces the U.S. Government to adapt, too, regardless of how Commerce’s NOAA regulates U.S. systems.