Commerce Department releases streamlined commercial remote sensing regulations

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WASHINGTON — The Commerce Department released long-awaited new commercial remote sensing regulations May 19 that eliminate many of the restrictions previously imposed on such systems.

The revised regulations, finalized after months of interagency review, would subject systems to only the “bare minimum of conditions” if they offer capabilities no better than what is available by foreign competitors, with somewhat more stringent conditions if they offer better capabilities or novel services not otherwise available.

“It ensures that U.S. space companies will remain competitive in the fast-developing global markets for commercial remote sensing products and services,” Commerce Secretary Wilbur Ross said of the new regulations in brief remarks at a May 19 meeting of the National Space Council at NASA Headquarters.

The final rule comes a year after the publication of a draft rule by the department that faced strong criticism from the remote sensing industry. One major problem industry had with the draft rule was a proposal to classify applications as “low risk” or “high risk” from a national security perspective, subjecting the latter to a more thorough review. Companies said that, as defined in the draft rule, nearly all companies would be classified as high risk.

The final rule does away with the risk classification. Instead, it uses a three-tier approach comparing the capabilities the system would offer with what is available in the global market. Proposed systems that offer data “substantially the same” as sources not licensed by the Commerce Department, such as foreign systems, will be placed in Tier 1 with few conditions.

“This is because Commerce cannot prevent the harm that such systems might cause to national security, regardless of how strictly they are regulated, because substantially the same unenhanced data are available from sources outside Commerce’s control,” the department noted in the proposed rule.

Those systems that would provide data matched only by other U.S. systems would go into Tier 2. Those would be subject to more conditions, including what’s known as “shutter control” that allows the government to temporarily restrict imaging of certain areas. Shutter control previously applied to all licensed systems, although was never used by the government. It also requires companies that propose to take resolved images of satellites or other artificial space objects to obtain the permission of the owner of that object and notify the Commerce Department five days in advance.

A Tier 3 is limited to proposed systems that offer “a completely novel capability” not otherwise available globally. Those systems would operate under the same rules as Tier 2 systems, but Commerce would have the authority to impose additional temporary conditions lasting up to three years.

“In short, the final rule represents a philosophical shift away from a purely risk-based approach. No longer will the U.S. Government assess systems based on the risk they may pose to national security and burden them accordingly to protect against such risk,” the department stated in the rule. “Instead, the U.S. Government will shift more of the burden of protecting national security to itself, focusing on mitigating the risk posed by the global remote sensing industry.”

The revised rule also eliminates operating conditions applied to specific imaging systems, such as synthetic aperture radar, shortwave infrared, and nighttime imaging. Tier 1 systems will, in addition, be able to perform imaging of space objects without restrictions.

The revised regulations also limit the time the Commerce Department can review license applications. Under existing rules, the government had 120 days to review licenses, but the new rule reduces that to 60 days.

The Commerce Department, which is separately gaining responsibility for civil space traffic management under Space Policy Directive 3, declined to impose orbital debris mitigation requirements as part of the commercial remote sensing licensing process in the final rule. Such systems, the department noted, also require communications licenses from the Federal Communications Commission, which has its own orbital debris mitigation requirements.

“To avoid duplicative regulation, Commerce has opted to defer to FCC license requirements regarding orbital debris and spacecraft disposal, and therefore there is no longer any license condition requiring specific orbital debris or spacecraft disposal practices in this final rule,” the Commerce Department stated in the final rule.