UPDATED TO ADD DOD STATEMENT

WASHINGTON: After a year of interagency wrangling, the Commerce Department today announced streamlined rules for commercial remote sensing satellites that lift many restrictions on radar imaging, night-time imaging, and short-wave infrared imaging.

“We heard the message from industry loud and clear that previous regulations were too restrictive and were preventing the realization of unique economic opportunities from commercial satellite remote sensing systems,” Commerce Secretary Wilbur Ross said in a statement today. US commercial remote sensing satellite operators must obtain a license from NOAA, which falls under Commerce.

“A lot of the burden has been shifted from commercial operators to the national security community,” said Brian Weeden, program director at the Secure World Foundation. “Overall, this looks to be a major improvement that really benefits the US remote sensing industry, They didn’t remove all the restrictions, but on my initial read it’s probably 85 percent better than before.”

The full text of the new rules will be published tomorrow, but Commerce today issued a public document explaining the changes from its first draft issued May 14, 2019.

The new rules mean that if imagery can be bought in a foreign country, US operators then have a right to sell it — effectively forcing DoD, the State Department and the Intelligence Community to accept international market realities.

“The new rule drops a lot of automatic restrictions entirely, including restrictions on radar imaging, night-time imaging, and short-wave infrared imaging,” Weeden noted.

Further, the new rules overturn the basic approach of the current licensing system, based on “permanent” restrictions. In place since 2006, that system meant any restrictions on a technology/capability remained in place until a new legal rulemaking was made. The new regime will be based on time-limited technology controls with set expiration dates of one to three years. The shift is designed to acknowledge the fact that state-of-the-art capabilities, such as image resolution, keep improving at a rapid pace.

“Instead of putting permanent restrictions on companies, the new regime would put in place temporary restrictions and force the national security community to adapt their operations,” Weeden said.

Industry sources I contacted today are still having their lawyers pour over the rulemaking, but a first glance leaves most of them happy with the changes made from the first draft.

That earlier draft prompted loud wailing and gnashing of teeth from many key remote sensing players, who argued that the new rules — which under the Trump Administration’s Space Policy Directive-2 (SPD-2) are supposed to help US industry on the international market — were in some respects even more restrictive than the old licensing requirements.

“It does seem to greatly streamline and shorten licensing processes for the vast majority of remote sensing technologies,” said one industry rep who has been following the rulemaking with a beady eye. “Recognizing the availability of foreign sources to provide data and expediting licenses for US remote sensing data of similar quality is imperative to maintaining US competitiveness.”

DoD’s biggest concerns about easing licensing restrictions, especially on foreign sales of imagery and related data analytics, had centered around synthetic aperture radar (SAR) satellites able to track ground targets, and cameras in space used for space situational awareness (SSA) operations.

With Pentagon worries in mind, the original May draft would have limited resolution of SAR data collection to 0.25 meters — a resolution that is actually higher than that currently available from non-US firms — and it would have banned any transmission of SAR data outside the US.

The final rules eliminate that blanket, capability-based restriction. Instead, caps on resolution might only be used if the SAR satellite operator were selling images at resolutions greater than those of foreign competitors.

Similarly, the new rules ease up on constraints included in the draft version on taking images of other satellites and space debris. However, Commerce does impose more serious restrictions for satellite imaging than for Earth imaging.

This is because DoD and the Intelligence Community — as well as some US allies — traditionally have been leery about allowing such imagery to be sold on the market because they wish to conceal the activities and characteristics of their classified satellites. (Some of which, by the way, may mimic space debris in order to passively collect data.)

“The one area where they still maintain automatic restrictions is on non-Earth imaging, i.e. one satellite taking pictures of another satellite. You’re still required to give prior notice to the DoD, but only 5 days instead of the previous 30, and you need to get permission from the satellite owner beforehand,” Weeden told me.

UPDATE BEGINS.

“DoD was a full participant in drafting this rule and worked closely with Commerce and other interagency partners to produce a result that will support the international competitiveness of the U.S. commercial space industry and continue to protect our most important national security interests,” said Pentagon spokesperson Lt. Col. Uriah Orland in an email to Breaking D this evening.

UPDATE ENDS.

The new licensing regime keeps the same three-tiered structure as the draft Notice of Proposed Rulemaking issues last May, which include shortened deadlines for USG decision-making.

In particular, the new rules create a new interagency dispute resolution process, and set limits on how long a license can languish in interagency limbo — notionally 120 days (although the language in today’s announcement seems to leave some wiggle room.) Indeed, sources said that the new dispute processes ironed out earlier State Department concerns about ensuring that the new regulations would keep US operators from violating US treaty obligations.

The tier structure works as follows:

  • Tier 1: If an applicant proposes a system that is capable only of producing unenhanced data [that is, raw imagery not improved or supplemented in any way] substantially the same as unenhanced data available from sources not regulated by Commerce, such as foreign sources, the system will be “Tier 1,” and receive the bare minimum of 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.
  • Tier 2: If an applicant proposes a system that is capable of producing unenhanced data that are substantially the same as unenhanced data available from U.S. sources only, the system will be “Tier 2.” As there is no foreign competition for that unenhanced data, a U.S. license restriction could be effective.
  • Tier 3: If an applicant proposes a system that is capable of producing unenhanced data
    that are substantially the same as no available unenhanced data—that is, if the
    applicant has no competitors, foreign or domestic—the system will be “Tier 3,”
    and more stringent controls logically may be applied.