83 FR 30592 - Licensing Private Remote Sensing Space Systems

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 83, Issue 126 (June 29, 2018)

Commerce is considering revisions to its regulations for the licensing of private remote sensing space systems, currently administered by NOAA. These revisions would facilitate the continued growth of this critical industry and update the regulatory regime to address significant technological developments, new business models, and increased foreign competition since their last update in 2006. In support of this effort, the Department through NOAA seeks public comment on substantive and procedural matters involved in commercial remote sensing licensing. Based in part on this public input, and based on a potential public meeting, the Department may draft proposed regulations and issue a Notice of Proposed Rulemaking.

[Federal Register Volume 83, Number 126 (Friday, June 29, 2018)]
[Proposed Rules]
[Pages 30592-30595]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-14038]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 960

[Docket No. 100903432-8557-01]
RIN 0648-BA15


Licensing Private Remote Sensing Space Systems

AGENCY: National Environmental Satellite, Data, and Information Service 
(NESDIS), National Oceanic and Atmospheric Administration (NOAA), 
Department of Commerce (Department, or Commerce).

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: Commerce is considering revisions to its regulations for the 
licensing of private remote sensing space systems, currently 
administered by NOAA. These revisions would facilitate the continued 
growth of this critical industry and update the regulatory regime to 
address significant technological developments, new business models, 
and increased foreign competition since their last update in 2006. In 
support of this effort, the Department through NOAA seeks public 
comment on substantive and procedural matters involved in commercial 
remote

[[Page 30593]]

sensing licensing. Based in part on this public input, and based on a 
potential public meeting, the Department may draft proposed regulations 
and issue a Notice of Proposed Rulemaking.

DATES: Comments must be received by August 28, 2018.

ADDRESSES: You may send comments by the following method:
    Federal eRulemaking Portal: Go to: www.regulations.gov and search 
for the docket number NOAA-NESDIS-2018-0058. Click the ``Comment Now!'' 
icon, complete the required fields, and enter or attach your comments.
    Mail: NOAA Commercial Remote Sensing Regulatory Affairs, 1335 East-
West Highway, G101, Silver Spring, Maryland 20910.
    Instructions: The Department of Commerce and NOAA are not 
responsible for comments sent by any other method, to any other address 
or individual, or received after the end of the comment period. All 
submissions received must include the agency name and docket number or 
RIN for this rulemaking. All comments received will be posted without 
change to www.regulations.gov, including any personal or commercially 
proprietary information provided.

FOR FURTHER INFORMATION CONTACT: Tahara Dawkins, Commercial Remote 
Sensing Regulatory Affairs, at 301-713-3385, or Glenn Tallia, NOAA 
Office of General Counsel, at 301-628-1622.

SUPPLEMENTARY INFORMATION:

Background

    Per Article VI of the Treaty on Principles Governing the Activities 
of States in the Exploration and Use of Outer Space, including the Moon 
and Other Celestial Bodies (``Outer Space Treaty''), activities of 
private U.S. entities in outer space require the ``authorization and 
continuing supervision'' of the United States Government. Subchapter VI 
of Title 51, National and Commercial Space Programs (51 U.S.C. 60121 et 
seq., hereinafter ``Statute''), authorizes the Secretary of Commerce 
(``Secretary'') to fulfill this responsibility for operators of private 
remote sensing space systems, by authorizing the Secretary to issue and 
enforce licenses for the operation of such systems. The Secretary's 
authority under the Statute is currently delegated to the Assistant 
Administrator for Satellite and Information Services and implemented 
through NOAA's existing regulations, 15 CFR part 960, last updated in 
2006. Under the Statute, NOAA has issued 119 licenses to U.S. 
corporations, universities, and people to operate over 1,000 imaging 
satellites, helping to ensure that the United States remains the clear 
world leader in this industry.
    Through the National Space Council, the Administration has made 
clear that long-term U.S. national security and foreign policy 
interests are best served by ensuring that U.S. industry continues to 
lead this rapidly maturing and highly competitive market. The 
priorities for the National Space Council and the Department are to: 
Encourage companies to do business in the United States; help 
businesses maintain a competitive advantage here; facilitate the growth 
of this important industry; and support innovation within it. To that 
end, the Department and NOAA wish to relieve any unnecessary regulatory 
burdens in the remote sensing area.
    Additionally, technological and other developments have highlighted 
ambiguities in the current regulatory regime, many of which were 
unforeseeable even just a few years ago. Specific examples include:

 Dramatic increase in the number of license applications
 Increasing remote sensing capabilities in other countries
 Cubesat constellations
 Non-Earth imaging
 Satellite servicing
 Innovative systems capable of imaging in different spectral 
bands
 Live video broadcasting from space
 Venture capital investment, including significant amounts from 
foreign nationals and corporations
 New entrants to space markets
 Hosted payloads
 Increasing use of public-private partnerships
 Complex contractual relationships
 Satellite servicing missions, including proximity operations
 Ground station networks located in multiple countries with 
different regulatory regimes
 Launch vehicles imaging on orbit

    The Department recognizes that there have been many proposals to 
improve the commercial remote sensing regulatory regime, some of which 
may require new or revised statutory authority to implement. However, 
the Department may be able to make significant improvements to the 
licensing of remote sensing even under the existing statute, simply by 
revising its regulations. Therefore, to support the Administration's 
above-mentioned priorities and to reflect the dramatic changes in the 
remote sensing industry since the last update of remote sensing 
regulations, the Department plans to revise its regulations. Before 
drafting specific provisions, the Department is seeking input from 
stakeholders regarding how it should best address a variety of 
important issues.

Request for Public Comments

    The Department welcomes input on any matters related to commercial 
remote sensing regulation, including specific examples of industry 
standards, alternative regulatory approaches, and legal definitions 
that work well in other areas. The Department also invites comment on 
the overall cost of complying with NOAA's existing regulations and any 
specific regulatory requirements that are particularly burdensome.
    In addition, the Department seeks input on the following specific 
topics:

Topic 1: Requirement To Obtain a License

    The Statute authorizes the Secretary of Commerce to license 
``private sector parties to operate private remote sensing space 
systems'' and prohibits a ``person that is subject to the jurisdiction 
or control of the United States'' from ``operat[ing] any private remote 
sensing space system'' without a license (51 U.S.C. 60121(a), 
60122(a)).
    In pursuit of the Department's goal to facilitate innovation, the 
Department seeks input on how to define these and other statutory terms 
in its regulations, and at what level of specificity. Definitions that 
are more specific would provide greater certainty to industry in 
determining whether a license is required, but specific definitions 
could quickly be outpaced by technological change, becoming obsolete or 
burdensome. Alternatively, less specific definitions could adapt as 
technology and business models develop, but might provide insufficient 
certainty to industry. The Department may be able to augment less 
specific definitions in its regulations with interpretive guidance, 
which could be updated more regularly to reflect industry developments.
    With this background in mind, the Department seeks general comments 
on this topic. In addition, the Department seeks input in response to 
the following specific questions:
    a. How should Commerce define the statutory terms ``private sector 
party'' and ``person subject to the jurisdiction or control of the 
United States?''
    b. How should Commerce define the statutory term ``private remote 
sensing space system?''
    c. How should Commerce determine which entity is the operator of a 
private remote sensing system (the operator is required to obtain a 
license under the

[[Page 30594]]

statute) in complex cases, such as when there are multiple entities 
involved in the operation of the system?

Topic 2: License Application and Review Processes

    Before a license can be granted, the Statute requires the Secretary 
to determine that the applicant will comply with the Statute, the 
regulations, and any international obligations and national security 
concerns (51 U.S.C. 60121(b)(1)). The Statute also requires the 
Secretary to consult with the Secretaries of Defense and State (51 
U.S.C. 60147(a), (b)).
    The Department seeks to expedite review of applications as much as 
possible within statutory constraints. Commerce recognizes that modern 
remote sensing space systems present a broad range of technical 
capabilities and possible risks to national security, foreign policy, 
and international obligations of the United States. Commerce would 
prefer that the majority of applicants, whose systems present few, if 
any, such risks, could be reviewed more quickly and be subject to a 
lighter regulatory approach overall. In addition to providing certainty 
and quicker review for most applicants, this approach would allow 
Commerce and its interagency partners to work with industry to focus 
resources on mitigating only the most critical risks posed by the most 
capable proposed systems.
    With this background in mind, the Department seeks general comments 
on this topic. In addition, Commerce seeks input in response to the 
following specific questions:
    a. Commerce is considering grouping proposed systems into two or 
more categories based on the potential risk presented by their 
capabilities. 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.
    1. Would the proposed category system be advisable?
    2. How should Commerce define categories in such a system? Consider 
the following factors, for example:

A. Earth-surface imaging capabilities, including temporal and spatial 
resolution
B. Non-Earth imaging capabilities, including temporal and spatial 
resolution
C. Other technical factors, including spectral range, data management 
cycle, and duration of the on-orbit capabilities
D. Non-technical matters, including business structure, foreign 
investment, and the degree of third-party investment in the system

    3. What application information should Commerce collect from 
applicants in different categories (e.g., applications in a de minimis 
sensing capability category versus moderate or precise sensing 
capability categories)?
    4. How should the review process for the different categories 
differ, including interagency consultation? Should Commerce issue a 
license based solely on notification by the applicant and confirmation 
by Commerce that the proposed system satisfies the criteria for the de 
minimis category?
    5. How and how often should Commerce reevaluate its definition of 
these categories over time?
    b. Should all applications or only applications for some categories 
of commercial remote sensing licenses enjoy a ``presumption of 
approval?'' If so, how should Commerce implement this presumption?
    c. Would it be helpful to require a pre-application consultation? 
If so, under which circumstances?
    d. How can the Department improve transparency during the 
application review process?
    e. Noting that new technologies can require extensive study, how 
can Commerce work proactively with the other reviewing agencies and 
potential future licensees to ensure that the Department is prepared to 
swiftly review any submitted applications?

Topic 3: License Conditions

    While some license conditions are required by statute or 
regulation, the Secretaries of Defense and State also determine 
additional individual conditions addressing national security, foreign 
policy, and international obligations (51 U.S.C. 60122, 60147; 15 CFR 
960.11). The Secretary of Commerce, through NOAA, ultimately implements 
and enforces all license conditions.
    Listing standard license conditions in Commerce's regulations would 
provide applicants with certainty. However, some flexibility may be 
necessary to allow the Department to tailor conditions to specific 
systems, as appropriate. Additionally, the Department recognizes that 
some license conditions can impose a heavy cost burden, which harms 
industry and frustrates U.S. policy. Commerce seeks to impose those 
conditions only when legally required or when critical risks to 
national security, foreign policy, and international obligations are 
identified. Finally, Commerce recognizes that once a license is issued, 
permanent retroactive changes to license conditions can be disruptive 
to a licensee's operations and business.
    With this background in mind, the Department seeks general comments 
on this topic. In addition, the Department seeks input in response to 
the following specific questions:
    a. Considering the default conditions in 15 CFR 960.11, are there 
any conditions that should be added, removed, or modified in light of 
technological changes or impacts to the industry?
    b. Should there be different default conditions for the different 
``categories'' of systems as described in Topic 2?
    c. When considering license conditions, how should NOAA think about 
the cost and benefit of conditions? What information could licensees 
provide to NOAA to inform that analysis?
    d. How should Commerce respond to emerging and unforeseeable 
national security, foreign policy, and international obligation issues 
for existing licensed systems (e.g., retroactive conditions, temporary 
restrictions)?
    e. Should the U.S. Government be required to attempt to mitigate 
any national security or other risks before imposing conditions? If 
such mitigation would be costly, how should Commerce balance the 
taxpayer cost with any avoided cost to licensees?
    f. Under the Convention on International Liability for Damage 
Caused by Space Objects, the U.S. Government and taxpayers may be 
liable for damage caused by a licensee to a space object, person, or 
property of another nation. The U.S. Government would not be liable if 
a licensee damages a space object, person, or property of another U.S. 
entity, but the licensee may lack the financial means to pay damages to 
an aggrieved entity. NOAA currently requires licensees to submit an 
orbital debris assessment report and spacecraft disposal plan, but 
should Commerce also consider a license condition requiring licensees 
to obtain some level of insurance to cover these potential liabilities? 
If such insurance is prohibitively expensive, should Commerce consider 
other, less burdensome means to protect U.S. taxpayers and other U.S. 
satellite owners?

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    g. How should Commerce adjust conditions in response to the 
increasing capabilities of non-U.S. entities? How frequently should 
NOAA evaluate those increasing capabilities?
    h. How can Commerce best provide transparency to licensees 
regarding classified national security risks?

Topic 4: Compliance and Enforcement

    The Secretary is required to ensure compliance with the regulations 
and with licenses (51 U.S.C. 60123, 15 CFR 960.13-960.15). To meet this 
obligation, NOAA must collect information, but it seeks to minimize the 
burden on licensees.
    With this background in mind, the Department seeks general comments 
on this topic. In addition, the Department seeks input in response to 
the following specific questions:
    a. What are appropriate mechanisms for ensuring compliance? 
Currently, Commerce uses site visits, virtual inspections, quarterly 
and annual audits, and no-notice inspections as needed.
    b. How should Commerce ensure compliance when multiple parties 
(including investors) play a role in a single licensed system? Options 
could include licensing all involved parties, or holding a single 
licensee responsible for the entire system.
    c. Are there any improvements the Department could make to its 
formal adjudication procedures in the regulations?
    d. Should Commerce mandate licensees to use certain technical 
standards, or particular software, for compliance purposes? If so, what 
standards or software should Commerce require?
    e. Should Commerce adopt different compliance policies and 
procedures for the different categories described in Topic 2? If so, 
what policies and procedures would be appropriate for the different 
categories?

Topic 5: Integration With Other Licensing and Regulatory Regimes

    The Department recognizes that many NOAA-licensed systems also 
require licenses from other U.S. Government agencies, and occasionally 
from agencies in other countries. The Department seeks to reduce the 
overall regulatory burden to licensees, when possible.
    With this background in mind, Commerce seeks general comments on 
this topic. In addition, the Department seeks input in response to the 
following specific questions:
    a. Within statutory constraints, how can Commerce avoid 
redundancies and inconsistencies between domestic regulatory regimes?
    b. Within statutory constraints, how can Commerce minimize burdens 
to licensees who operate in multiple countries and are subject to 
multiple countries' regulatory regimes?

Classification

    This advance notice of proposed rulemaking was determined to be 
significant for purposes of E.O. 12866.

    Dated: June 25, 2018.
Stephen Volz,
Assistant Administrator for Satellite and Information Services, 
National Oceanic and Atmospheric Administration, Department of 
Commerce.
[FR Doc. 2018-14038 Filed 6-28-18; 8:45 am]
 BILLING CODE 3510-HR-P