Deep Seabed Mining: Approval of Exploration License Extensions, 42327-42329 [2017-18994]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 82, Number 172 (Thursday, September 7, 2017)]
[Notices]
[Pages 42327-42329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration


Deep Seabed Mining: Approval of Exploration License Extensions

AGENCY: Office for Coastal Management, National Ocean Service, National 
Oceanic and Atmospheric Administration (NOAA), Department of Commerce.

ACTION: Notice of extension of Deep Seabed Hard Mineral Exploration 
Licenses.

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SUMMARY: NOAA is announcing the approval of two, five-year extensions 
of deep seabed hard mineral exploration licenses issued under the Deep 
Seabed

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Hard Mineral Resource Act (DSHMRA). The decision to approve the 
extensions follows a determination that the Licensee has substantially 
complied with the licenses, their terms, conditions and restrictions, 
and the associated exploration plan, and a review of comments on the 
requested extensions. No at-sea exploration activities are authorized 
by these extensions without authorization and further environmental 
review by NOAA.

FOR FURTHER INFORMATION CONTACT:  Kerry Kehoe, Office for Coastal 
Management (N/OCM6), NOS, NOAA, 1305 East-West Highway, Silver Spring, 
MD 20910; 240-533-0782; email Kerry.Kehoe@noaa.gov.

SUPPLEMENTARY INFORMATION: On February 21, 2017, Lockheed Martin 
Corporation (Licensee or ``LMC'') requested from NOAA an extension of 
two exploration licenses that it holds under the Deep Seabed Hard 
Mineral Resources Act (DSHMRA). The licenses are known as USA-1 and 
USA-4.
    When originally issued in 1984, USA-1 and USA-4 were for a term of 
ten years. DSHMRA requires that requests to extend the licenses be 
approved every five years if the licensee has substantially complied 
with the licenses, their terms, conditions and restrictions, and the 
associated exploration plan.
    On April 20, 2017, NOAA published a Federal Register notice (82 FR 
18613) announcing the receipt of the extension request for USA-1 and 
USA-4, and soliciting comments on whether the Licensee had met the 
statutory requirement of showing substantial compliance. Comments were 
also solicited from the Western Pacific Fisheries Management Council 
(WPFMC) and the U.S. Department of State. A response to comments is 
included in this notice.
    Upon determining that the Licensee had substantially complied with 
the licenses, their terms, conditions and restrictions, and the 
associated exploration plan, and completing environmental review of the 
request for extension in conformance with the requirements of the 
National Environmental Policy Act, NOAA approved a five-year extension 
of the licenses through June 2, 2022. The extension maintains the 
proprietary interests that the licenses confer upon the Licensee but 
does not authorize LMC to conduct at-sea exploration activities 
pursuant to the licenses. Additional authorization and further 
environmental review by NOAA is required before at-sea exploration may 
be undertaken pursuant to these licenses.
    Response to Comments: As noted above, in addition to the Federal 
Register notice requesting comments on the extension request, comments 
were solicited from WPFMC and the U.S. Department of State. The WPFMC 
found that none of the fisheries under the Council's jurisdiction would 
be affected by the onshore activities outlined in the extension 
request, and had no objections to the extension. The Department of 
State reviewed the request and had no objections or comments.
    NOAA received five responses to the Federal Register notice request 
for comments. The comments received are summarized as follows along 
with the responses by the NOAA Office for Coastal Management.
    Comment: Deep seabed mining can result in environmental disturbance 
and harm to ocean ecosystems and should not be authorized.
    Response: LMC is not proposing, and NOAA is not authorizing, at-sea 
deep seabed exploration activities at this time. Rather, NOAA is 
extending existing exploration licenses, which by their terms, require 
additional NOAA approval prior to the Licensee commencing at-sea 
exploration activities. Commercial recovery operations are not 
permitted by the USA-1 and USA-4 licenses.
    Comment: Unless and until there is full accession by the United 
States to the 1982 United Nations Law on the Sea Convention, United 
States companies should be prohibited from conducting exploration 
activities on the international seabed.
    Response: The NOAA Administrator is under an obligation established 
by Congress to issue an extension of these licenses to a U.S. applicant 
if the relevant criteria are satisfied. One of the express purposes of 
DSHMRA is to establish an interim program to regulate the exploration 
for and commercial recovery of hard mineral resources of the deep 
seabed by United States citizens pending the ratification by, and 
entering into force with respect to the United States, of what was then 
known as the Law of the Sea Treaty. See 30 U.S.C. 1401(b)(3). Under the 
requirements of Section 107(a) of DSHMRA, NOAA is required to approve 
requests to extend exploration licenses if the Licensee has 
substantially complied with the license, its terms, conditions and 
restrictions, and the exploration plan associated therewith. See 30 
U.S.C. 1417(a). Consistent with the criteria set forth in 15 CFR 
970.515(b), NOAA has determined that the Licensee has substantially 
complied with the licenses, their terms, conditions and restrictions, 
and associated exploration plan, and therefore, extension of USA-1 and 
USA-4 licenses may not be withheld. A DSHMRA exploration license gives 
the holder the exclusive right to explore a specific area, but only as 
against other U.S. entities. Any rights a U.S. company may have 
domestically are not secured internationally because U.S. companies are 
not able to go through the internationally recognized process at the 
International Seabed Authority established for Parties to the United 
Nations Convention on the Law of the Sea (UNCLOS).
    Comment: There has not been meaningful progress by the Licensee to 
show that there has been substantial compliance with the licenses and 
exploration plan. In claiming that the exploration plan has been 
diligently pursued, the Licensee claims credit for work that was not 
conducted by the Licensee or even in the USA-1 or USA-4 license areas. 
The extension request should be denied.
    Response: NOAA disagrees with the conclusion that the Licensee has 
not substantially complied with the USA-1 and USA-4 licenses and the 
exploration plan associated therewith.
    In assessing whether the Licensee has substantially complied with 
the licenses, their terms, conditions and restrictions, and the 
associated exploration plan, the Act requires that the Licensee pursue 
diligently the activities described in its approved exploration plan. 
The licenses further specify that in order to show that it has 
diligently pursued the activities in its approved exploration plan, the 
Licensee shall submit an annual report demonstrating conformance with 
the schedule of activities, level of activity, and expenditures for 
implementing the plan. This report also focuses on the evolving ability 
of the Licensee to apply for a permit for commercial recovery.
    In regard to satisfying the diligence requirement, the Deep Seabed 
Mining Regulations for Exploration Licenses state that:

    Ultimately, the diligence requirement will involve a 
retrospective determination by the Administrator, based on the 
licensee's reasonable conformance to the approved exploration plan. 
Such determination, however, will take into account the need for 
some degree of flexibility in an exploration plan. It will also 
include consideration of the needs and state of development of each 
licensee, again based on the approved exploration plan. In addition, 
the determination will take account of legitimate periods of time 
when there is no or very low expenditure, and will allow for a 
certain

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degree of flexibility for changes encountered by the licensee in 
such factors as its resource knowledge and financial considerations. 
15 CFR 970.602(c).

    The exploration plans associated with these licenses have evolved 
since their original approval as part of the initial license issuance 
in 1984. In 1991, NOAA approved a revised exploration plan for USA-1 
delaying at-sea exploration due to unfavorable conditions in the metals 
markets.\1\ Subsequent extensions of USA-1 included the approval of the 
exploration plan with the delayed implementation of at-sea activities 
(referred to as ``Phase II Activities'' in the exploration plan). When 
NOAA approved the transfer of USA-4 to the Ocean Minerals Company 
(OMCO), the predecessor to LMC, in 1994, OMCO stated that no at-sea 
exploration activities were planned or needed due to data collection 
that preceded the enactment of DSHMRA. In 2012, NOAA approved a 
consolidated exploration plan for USA-1 and USA-4 with the same 
contingency delaying the start of Phase II at-sea exploration 
activities due to unfavorable market conditions. In addition, the 
Licensee cited the need to have security of tenure through 
international recognition of the licenses by the International Seabed 
Authority following accession by the United States to the UNCLOS, as a 
justification for delay of the Phase II exploration activities. Since 
the last extension of these exploration licenses, LMC has made 
substantial expenditures on activities pursuant its approved 
exploration plan.\2\ Noteworthy activities of LMC include:
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    \1\ DSHMRA regulations provide that the Administrator may make 
allowance for deviation from the exploration plan for good cause, 
such as significantly changed market conditions (provided the 
request for extension is accompanied by an amended exploration plan 
to govern the activities of the licensee during the extended 
period). See 15 CFR 970.515(b).
    \2\ Although LMC has discussed some work performed in 
collaboration with a United Kingdom subsidiary in its annual 
reports, NOAA's determination of substantial compliance was based 
upon an assessment of LMC's contributions to these collaborative 
efforts.
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     The integration of data into a GIS system to map nodule 
density including the density distribution of nodules by concentrations 
of target metals;
     The development of environmental baseline metrics by 
benthic organism class;
     The development of updated economic models based on the 
validation of the end-to-end baseline architecture for seabed mining 
through the assessment of each segment of the architecture for its 
technical and economic feasibility;
     Benchtop metallurgical tests of extraction efficiencies 
for the primary commercial target metals and Rare Earth Elements found 
in nodules;
     Selecting the chain of custody and processing protocols 
that will be used for mineral content certification which will be 
necessary in order to obtain financing for future operations; and
     Participation in the meetings and discussions of the 
International Seabed Authority and various international programs 
pertaining to the deep seabed.
    In addition, the approved exploration plan includes environmental 
assessment activities that must occur as a prerequisite to undertaking 
Phase II. These activities are necessary to further advance the 
understanding of the seabed environment, and the scientific methodology 
for its characterization. Developing this understanding is not limited 
to activities pertaining specifically to the areas licensed to LMC. 
Working collaboratively with research institutions, nation states, and 
exploration contractors authorized by the International Seabed 
Authority, LMC has contributed to collaborative efforts that have made 
substantial advancements in identifying organisms inhabiting the deep 
seabed, their abundance, distribution, diversity, and community 
structure. In addition to taxonomic classifications, these efforts have 
included genetic characterizations, which are critical to establishing 
biogeographical distinctions and connectivity in the deep seabed 
environment. This data and information, in turn, can be used for 
predictive habitat modelling. These contributions to the advancement of 
science are expected to be applicable to activities in the areas within 
the USA-1 and USA-4 licenses when Phase II activities are proposed 
there. NOAA, therefore, views these efforts as further evidence of the 
Licensee's diligence in pursuing the activities described in the 
exploration plan.
    As discussed in the exploration plan associated with the requested 
extension of USA-1 and USA-4, the Licensee continues to find that the 
market conditions and the lack of international tenure under UNCLOS 
prevent the company from moving forward with Phase II of its 
exploration plan. Nonetheless, the Licensee has demonstrated a 
commitment to retain the licenses on a legitimate presumption that the 
existing contingencies will be resolved. LMC's annual reports 
demonstrate that preparatory work for at-sea exploration is continuing 
and NOAA has determined that such efforts constitute substantial 
compliance with the USA-1 and USA-4 licenses and associated exploration 
plan. As such, extension of USA-1 and USA-4 is warranted.
    Comment: Due to the LMC's failure to adequately specify what 
activities are to occur under the individual exploration licenses, the 
applicant has failed to substantially comply with its license and 
application plan, and therefore, the extension requests should be 
denied.
    Response: NOAA disagrees. In 2012, NOAA approved a consolidated 
exploration plan for USA-1 and USA-4. The Phase I preparatory 
activities within the approved consolidated exploration plan are 
described generally and appropriately apply to both areas. Given the 
general nature of the preparatory activities under Phase I, separate 
descriptions of those activities for both license areas are not 
necessary. As described above, the Licensee has provided sufficient 
justification to determine that it has substantially complied with the 
licenses and associated exploration plan. If the Licensee proceeds to 
Phase II, activity descriptions pertaining specific areas may be 
necessary.

    Federal Domestic Assistance Catalog 11.419 Coastal Zone 
Management Program Administration.

    Dated: August 30, 2017.
Donna Rivelli,
Associate Assistant Administrator for Management and CFO/CAO, Ocean 
Services and Coastal Zone Management, National Oceanic and Atmospheric 
Administration.
[FR Doc. 2017-18994 Filed 9-6-17; 8:45 am]
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