Remote Sensing Regulations Raise Concerns Among Industry Players

Industry leaders are not pleased with the National Oceanic and Atmospheric Administration’s (NOAA) final rules and regulations that go into effect Aug. 30 and will govern the entire remote sensing industry.

“We feel that they are extensive and potentially beyond the scope of what was originally envisioned by those who wrote the high-resolution remote sensing policies,” John Copple, Space Imaging’s CEO, told SPACE BUSINESS NEWS.

While Space Imaging has to deal with these regulations now, its competitors OrbImage Corp. and EarthWatch Inc. have yet to launch their birds and may be able to modify business strategies if the regulations pose a significant deterrent to their bottom lines.

“We are thoroughly reviewing the rules and plan on having a course of action in the coming weeks,” said Gilbert Rye, president and CEO of OrbImage.

Herb Satterlee, president and CEO of EarthWatch, added, “NOAA has opened the door to us and we will be working directly with them in hopes of finding a resolution to some of these issues.”

The major area of concern lies in the regulations regarding shutter control implementation for imagery access under the First Amendment.

Industry sources added that the guidelines do not codify any standards by which political appointees will make a determination that there is a threat to national security or foreign policy.

The ambiguity surrounding shutter control raises concern among business developers because, as it stands, the U.S. government can shut down commercial operations for any specified length of time. This poses a competitive threat to any business model because revenue projections, contracts and relationships may be hindered during such impositions.

“They have overlooked the very basic argument that we have made,” said Barbara Cochran, president of the Radio-Television News Directors Association. “When information may compromise a foreign policy interest or international obligation, Constitutional law holds that there can be no injunction against publication, except when evidence has been presented in a court of law and a judicial determination has been made.”

Cochran added that the threshold outlined in the regulations is “much lower” in setting the conditions under which publication restraint would be exercised. “Also, by keeping the decision-making power in the hands of the Executive Branch they are creating rules that are fundamentally unconstitutional,” she said.

In light of industry concerns surrounding the rules, NOAA will accept industry comments on the regulations through Sept. 29.

“Depending on the comments, we may go back and modify the standing regulations,” said Charles Wooldridge, NOAA’s remote sensing licensing coordinator. Cochran added that her organization will be making a filing by the end of September.

Even though remote sensing industry players are somewhat discouraged by the final regulations, others following the industry believe this is a “step in the right direction” and significant detriment to business dealings may not be felt.

“These new regulations are trying to give insurance to the industry that indeed there will be a process by which the government will follow,” said John Baker, technology/policy analyst with Rand. “In the matter of shutter control, the government will be extremely reluctant to specifically spell out exactly when shutter control will be imposed. We really won’t know how these regulations will play out until there is a major security issue and they have to implement the rules.”

For further information concerning the remote sensing rules and regulations, contact: Charles Wooldridge, 301/713-2024 ext. 207; Karen Dacres, 301/713- 1329 ext. 200.

Issues Raised By Public

NOAA received 24 sets of public comments regarding the proposed rulemaking.

Most issues raised can be summarized under the following categories:

• Control, ownership and investment;
• National security interests, foreign policy and international obligations;
• Review of foreign agreements;
• Confidentiality of information; and
• The interagency memorandum of understanding.

Source: NOAA

What The Rules Stipulate On National Security

According to the rulings, NOAA regulations dictate that measures of shutter control will be imposed:

• For the smallest area and for the shortest period necessary to protect the national security, international obligation or foreign policy concerns at issue.
• Alternatives to prohibitions on collection and/or distribution will be considered such as delaying the transmission or distribution of data, restricting the field of view of the system, encryption of the data if available or other means to control the use of the data.

Source: NOAA