Deep Ocean Policy: Is it too early?

     Balancing the need for policies before there is a clear need for policies is always a delicate argument. In some instances developing policies before an industry reaches maturity can  head off unintended damage to an ecosystem. On the other hand pushing to create policies where it is not clear that they are needed can be viewed as premature regulation. The current discussion is focused on the deep sea where, according to this article in Space Daily, "Technological advances have made the extraction of deep sea mineral and precious metal deposits feasible." The article quotes Cindy Lee Van Dover, director of the Duke University Marine Laboratory, "It is imperative to work with industry and governance bodies to put progressive environmental regulations in place before industry becomes established, instead of after the fact." The reasoning behind this argument is to get it right based on current science. If this logic were followed in the past would we have as much of an issue with space debris as we do now? As asteroid mining becomes more of a reality should we be formulating policies to address foreseeable issues? An example of creating policies for a young industry is the FAA creating a roadmap to integrate unamanned aircraft systems (UAS) into current airspace. On the other hand premature policy making could stifle innovation and prevent business from being carried out.  There is no one best course of action, but it is important to engage in open, objective dialogue.

Resources to explore policy and policy making:
Definition of policy: http://www.merriam-webster.com/dictionary/policy
Policy making cycle: http://www.ushistory.org/gov/11.asp

Zdenek J. Slouka, United Nations and the Deep Ocean: From Data to Norms, 1 Syracuse J. Int'l L. & Com. 62 (1972).

The Evolution of Natural Resources Law and Policy (Lawrence J. MacDonnell & Sarah F. Bates eds., Section of Environment, Energy, and Resources, American Bar Association, 2010).  

FAA Regulation of Commercial Space Transportation

     Commercial space transportation has the ability to  jeopardize public health and safety, property, U.S. national security, foreign policy interests, and international obligations of the United States. Fortunately we have the Federal Aviation Administration (FAA) to issue licenses and permits. These licenses and permits are issued through the Office of Commercial Space Transportation (AST) for launch or reentry vehicles, launch sites (spaceports), experimental permits for reusable suborbital rockets, and safety approvals. Here are the resources that explain where the FAA's authority comes from. As with most space law issues the beginning lies with the International Treaty System.

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the "Outer Space Treaty"), adopted by the General Assembly in its resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967;

 

States Parties to the Treaty shall bear international responsibility for national activities in outer space…and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space… shall require authorization and continuing supervision by the appropriate State Party to the Treaty. (Art. VI).

A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and personnel, while in outer space or on a  celestial body. Ownership of objects … is not affected by their presence in outer space or on a celestial body or by their return to the Earth. (Art. VIII).

The above parts of the Outer Space Treaty were the precursor for the Registration Convention which further outlines the responsibility of nations who send objects and people into space.

The Convention on Registration of Objects Launched into Outer Space (the "Registration Convention"), adopted by the General Assembly in its resolution 3235 (XXIX), opened for signature on 14 January 1975, entered into force on 15 September 1976;

    This treaty was developed to provide for the national registration of objects launched into outer space, establish a central register of objects launched into outer space, and provide additional means and procedures to assist in the identification of space objects.

[T]he launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry. (Art. II).

 

The contents of each registry and the conditions under which it is maintained shall be determined by the State of registry concerned. (Art. II)

     In 1984 the U.S. Congress passed the Commercial Space Launch Act, Pub. L. No. 98-575, 98 Stat. 3055 (1984).  This Act and its amendments were codified in Title 49 of the U.S. Code. Then in December 2010 Congress consolidated all U.S. space laws into the new Title 51 National and Commercial Space Programs, Pub. L. No. 111-314, 124 Stat. 3328 (2010). The Commercial Space Launch Act is now codified in chapter 509 of title 51. This is where the Department of Transportation is designated to regulate the commercial launch industry. The Office of Commercial Space Transportation (AST) was transferred to the Federal Aviation Administration (FAA) in 1995.
     The regulations based on the Commercial Space Launch Act are codified in the Code of Federal Regulations (CFR) in Title 14, chapter 3 (14 C.F.R. § 400.1 (2012)). Here is a list of where to find the various regulations within Title 14:

Part 413-LICENSE APPLICATION PROCEDURES

Part 414-SAFETY APPROVALS
Part 415-LAUNCH LICENSE
Part 417-LAUNCH SAFETY
Part 420-LICENSE TO OPERATE A LAUNCH SITE
Part 431-LAUNCH AND REENTRY OF A REUSABLE LAUNCH VEHICLE (RLV)
Part 433-LICENSE TO OPERATE A REENTRY SITE
Part 435-REENTRY OF A REENTRY VEHICLE OTHER THAN A REUSABLE LAUNCH  
              VEHICLE (RLV)
Part 437-EXPERIMENTAL PERMITS
Part 440-FINANCIAL RESPONSIBILITY
Part 460-HUMAN SPACE FLIGHT REQUIREMENTS

It appears that the FAA's jurisdiction is over the launch and reentry of space vehicles and not over activities once in orbit.