New Remote Sensing Regs Great Improvement, But Devil is in the Details

New Remote Sensing Regs Great Improvement, But Devil is in the Details

A three-day meeting of a NOAA advisory committee was full of praise for the new commercial remote sensing regulations published last month.  Yet speaker after speaker used the phrase “the devil is in the details” to characterize what comes next. Implementation can be the hardest part and some think legislation is needed.

Speakers at NOAA’s Advisory Committee on Commercial Remote Sensing (ACCRES) meeting included three members of Congress, the Secretary of Commerce, the head of NOAA, and high ranking officials from the White House and DOD.

The new regulations are the fruit of a two-year process that began with the White House’s May 2018 Space Policy Directive-2 (SPD-2).  It directed the Department of Commerce (DOC) and Department of Transportation (DOT) to overhaul their respective regulations governing commercial satellite remote sensing and commercial space transportation. The goal was to get them done in a year, but it is taking longer.  DOT’s still have not been released.  At a meeting of its Commercial Space Transportation Advisory Committee (COMSTAC) on Monday, DOT officials said they are in the internal DOT review process, then must go to the Office of Management and Budget, and hopefully will be out in September.

Secretary of Commerce Wilbur Ross

In both cases, the initial rewrites ran into stiff opposition from industry. The push-back earned praise from the government at these advisory committee meetings this week, with assertions that the final versions are a vast improvement over the original regulations as well as last year’s attempts.

Secretary of Commerce Wilbur Ross assured the 18 members of ACCRES that “you told us that our first draft of the rules would be detrimental to the U.S. industry and that it could threaten a decade worth of progress. … We listened.”

The new regulations represent a paradigm shift where the U.S. government has come to understand that the growth in foreign competition means it cannot control much of the satellite remote sensing data that is available on the commercial market.  In the past, the national security community tried to limit the clarity of data adversaries could access by restricting the resolution of U.S. commercial satellite systems and what U.S. companies could sell.

Industry argued that simply meant other countries developed their own systems and sold better data, with U.S. companies losing market share.  The new regulations take a different approach, allowing U.S. companies to sell data similar to that available on the global market with sharp restrictions only on innovative technologies that produce data not sold by others.

Source: Presentation to the NOAA Advisory Committee on Commercial Remote Sensing (ACCRES), June 23, 2020, by Glenn Tallia, NOAA Office of General Counsel.

The new regulations create three tiers of systems reflecting whether the resulting data are globally available, domestically available, or not widely available at all and structure the regulations accordingly.

Source: Presentation to the NOAA Advisory Committee on Commercial Remote Sensing (ACCRES), June 23, 2020, by Glenn Tallia, NOAA Office of General Counsel.

Although the regulations are now published, that is hardly the end of the story. Implementation will be key and some also see the need to pass legislation revising the outdated 1992 Land Remote Sensing Act that set up the licensing regime and assigned it to NOAA.

Bills are pending in the 116th Congress to do that, both of which were introduced in the 115th Congress but did not pass.  Senator Ted Cruz (R-TX) reintroduced the Space Frontier Act (S. 919) last year and Rep. Brian Babin  (R-TX) the American Free Enterprise Space Commerce Act (H.R. 3610).  Both spoke to ACCRES on Tuesday.

Sen. Ted Cruz (R-Texas)

Cruz lauded the new regulations, but was the first of many to say the devil is in the details. If the new licenses do not, in fact, reflect the changed paradigm, passing his Space Frontier Act is all that more important, he said, while bitterly blaming House Democrats for blocking the bill.

Rep. Kendra Horn (D-OK), who chairs the space subcommittee of the House Science, Space, and Technology Committee, did not, in fact, mention those bills when she spoke to ACCRES the next day. Asked what space legislation she expects to consider this year, she mentioned getting the NASA Authorization Act passed (she said the full committee is about to mark it up) and holding hearings on space domain awareness/space traffic management and on the need for government investments in research and development.

Horn presented a long list of concerns about the implementation of the new regulations, however: how will decisions on what tier an application will be placed into be made and by whom; what “substantially the same” unenhanced data and whether that data is “available” mean in practice; who will monitor what data are available globally, how often, and how much will that cost; why cybersecurity requirements are reduced; and what issues and questions Congress should be considering other than space-based Earth imaging, such as non-Earth imaging and radio-frequency sensing systems.

Like Cruz, Babin argued in favor of passing legislation. He worries the tier structure could lead to the government “reverting to its old ways by making subjective determinations that the applicant’s systems are subject to the highest tier process.”  He also objects to the government’s expansion of the interpretation of “land remote sensing.”  The 1992 Act did not grant authority to regulate any sensing from space, such as the collection of imagery of other satellites, only land remote sensing. “We can’t continue to think about remote sensing as a Cold War space technology, when in fact it is increasingly an information technology requiring a different regulatory philosophy.”

He cited the absence of a U.S. commercial satellite synthetic aperture radar (SAR) industry as an example of past mistakes. The U.S. government’s reaction was to stick its head in the sand “and pretend that it would go away. And that’s exactly what it did. It went overseas. And the U.S. industry has been playing catch up ever since.”

The three days of robust discussion among the committee members, including about SAR, underscore that while the regulations are a long-awaited, promising step to make the U.S. commercial remote sensing industry more competitive globally, they are just a step.

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