[Federal Register Volume 80, Number 250 (Wednesday, December 30, 2015)]
[Notices]
[Pages 81529-81531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-32889]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration


Extension of Deep Seabed Exploration Licenses: Response to 
Comments

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

ACTION: Response to comments.

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SUMMARY: Due to a clerical error, comments submitted by the Center for 
Biological Diversity on a requested extension of Deep Seabed Hard 
Mineral Resources Act exploration licenses were not considered until 
after the licenses were extended. After reviewing and considering those 
comments, NOAA has found that they provide no basis for reconsidering 
the requested license extensions or revising the now-extended licenses.

FOR FURTHER INFORMATION CONTACT: Contact Kerry Kehoe, Office for 
Coastal Management, National Ocean Service, 301-563-1151, 
[email protected].

SUPPLEMENTARY INFORMATION: On February 28, 2012, the National Oceanic 
and Atmospheric Administration published a notice in the Federal 
Register advising the public of a request from Lockheed Martin 
Corporation (Lockheed Martin) to extend its two deep seabed mining 
exploration licenses (USA-1 and USA-4) issued under the Deep Seabed 
Hard Mineral Resources Act (DSHMRA). See 77 FR 12245. Comments on the 
proposed extensions were requested at that time. Following the February 
28, 2012, Notice, NOAA published a second notice in the Federal 
Register announcing the extension of Licenses USA-1 and USA-4 through 
2017, and discussing several comments received on the extensions. See 
77 FR 40586 (July 10, 2012).
    Comments submitted by the Center for Biological Diversity (CBD), 
however, were not discussed in the July 10, 2012, notice. The CBD 
comments were received by NOAA but, due to a clerical error, the 
comments were not routed to the license extension reviewers who were 
unaware of CBD's comments until after an inquiry was received from CBD 
following the July 10, 2012, publication of the extension notice. Upon 
review and consideration of CBD's comments, NOAA determined that the 
extension of the exploration licenses should stand without modification 
as CBD's comments were based on a misunderstanding of the nature and 
scope of the license extensions.
    Following the discovery of CBD's comments, the relevant Staff from 
NOAA discussed the substance of the comments with CBD and described why 
CBD's concerns as articulated in the comments were not relevant to the 
USA-1 and USA-4 license extensions. In addition, NOAA is now publishing 
a response to the CBD comments to address any public misconceptions 
about the extension of the deep seabed mining exploration Licenses USA-
1 and USA-4.

General Response to the CBD Comments

    The CBD comments pertain to activities not presently authorized 
pursuant to the license extensions. Instead, the CBD comments are 
relevant to at-sea exploration activities that, if pursued, would first 
require additional NOAA approvals. See 77 FR 12246. As discussed below, 
the extension of the Lockheed Martin exploration licenses merely serves 
to preserve the legal status and any domestic and international 
priority of rights that

[[Page 81530]]

Licenses USA-1 and USA-4 may confer.
    As part of Lockheed Martin's request to extend the USA-1 and USA-4 
exploration licenses, it submitted a two-phase exploration plan. This 
two-phased plan is consistent with all the previous exploration plans 
submitted since the issuance of these licenses. Phase I is a 
preparatory stage which includes activities for which no license would 
be required. Phase II includes activities for which an exploration 
license may be required. The current exploration plan includes 
statements anticipating that actual exploration activities might be 
conducted under Phase II during the requested five-year extension; 
however, those statements are qualified. Lockheed Martin has stated 
that before it will conduct at-sea activities requiring an exploration 
license (i.e., Phase II activities), international security of tenure 
must first be obtained.\1\ In order for this to occur, the United 
States must first accede to the Law of the Sea Convention. The United 
States Department of State, in commenting on the requested license 
extension, stated its view that for Lockheed Martin to proceed with 
exploration activities without international recognition would be a 
violation of the terms, conditions and restrictions of its license. In 
the July 10, 2012, Federal Register notice for the issuance of the 
extension for the explorations licenses, NOAA acknowledged and accepted 
the Department of State's position. See 77 FR 12246.
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    \1\ Lockheed Martin has also stated that the market price of 
metals would need to increase and stabilize to make the deep sea 
recovery of such materials commercial viable.
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    Lockheed Martin also provided NOAA written confirmation that no at-
sea exploration activities, which would require a license, would be 
conducted without additional authorization from NOAA. Such 
authorization would, at that time, be subject to all necessary 
environmental reviews. Although Lockheed Martin may ultimately conduct 
at-sea exploration activities pursuant to the USA-1 and USA-4 licenses, 
such activities would require additional environmental review and NOAA 
authorization before commencement of such exploration pursuant to these 
licenses.
    Accordingly, upon review and consideration of the CBD comments, 
NOAA has found that the extension of the deep seabed mining exploration 
licenses should stand without modification. NOAA's specific responses 
to the CBD comments are provided below.

Response to CBD Comments

    Comment 1: NOAA cannot extend the licenses or approve the 
exploration plan unless it fully complies with the environmental review 
provisions of the National Environmental Policy Act (NEPA) through the 
preparation of an environmental assessment or environmental impact 
statement which includes a full analysis of the impact of direct, 
indirect and cumulative effects; alternatives; and mitigation measures 
for the action, along with an opportunity for public review and 
comment. It is inadequate for NOAA to rely on any prior NEPA analysis 
as there is significant new information about the impacts of offshore 
mineral exploration. While tiering to a previous environmental 
assessment (EA) or environmental impact statement (EIS) may be useful 
in complying with NEPA, it does not eliminate the need to analyze the 
impacts of site specific actions.
    Response: NOAA disagrees that the Agency has failed to fully comply 
with the requirements of NEPA.
    NOAA has prepared a programmatic EIS in connection with potential 
deep ocean mining activities.\2\ In addition, an EIS was prepared for 
USA-1 and USA-4 \3\ at the time of issuance and an updated 
environmental assessment was prepared in 1989 for the licenses.\4\ When 
USA-4 was transferred to Lockheed Martin Company in 1994, an additional 
environmental impact statement was prepared that noted that the EIS was 
only being prepared to meet the requirements of DSHMRA to prepare an 
EIS, and not those of NEPA as the transfer of the license would not 
have significant environmental impacts.\5\
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    \2\ The programmatic EIS was prepared in 1981 which described 
the results of the Deep Ocean Mining Environmental Study (DOMES), a 
five-year project designed to examine potential effects of nodule 
mining. The review covered both exploration and commercial recovery 
authorizations; however, it only assessed the environmental impacts 
from first generation mining activities with the belief that there 
would be a need for further assessments as the industry developed 
and evolved. The PEIS found that data collection activities for 
assessing resources and determining seafloor characteristics 
presented no threat of significant adverse effects on the 
environment. U.S. Dept. of Commerce, NOAA, Deep Seabed Mining: Final 
Programmatic Environmental Impact Statement, Sept. 1981.
    \3\ U.S. Dept. of Commerce, NOAA, Deep Seabed Mining: Final 
Environmental Impact Statement, July 1984.
    \4\ U.S. Department of Commerce, NOAA, Deep Seabed Mining: An 
Updated Environmental Assessment of NOAA Deep Seabed Mining 
Licensees' Exploration Plans, Jan. 1989.
    \5\ U.S. Dept. of Commerce, NOAA, Deep Seabed Mining: Final 
Environmental Impact Statement, November 1994.
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    With respect to the instant license extensions, NOAA considered its 
environmental compliance obligations and determined that, in order for 
the Agency to conduct an environmental review, there must first be a 
proposed activity to review. As discussed above, there is no action 
triggered or authorized pursuant to the USA-1 and USA-4 license 
extensions that has the potential to significantly affect the 
environment. The extensions merely preserve any domestic or 
international priority of rights the licenses may confer. Lockheed 
Martin's revised exploration plan associated with the license 
extensions, which like each other exploration plan submitted for these 
licenses, has two phases with the first being preparatory land-side 
activities that do not require any authorizations and the second 
including actual at-sea exploration activities. Lockheed Martin has 
noted that its Phase II activities are contingent upon a U.S. accession 
to the Law of the Sea Convention and a substantial increase in the 
market prices for metals; two events which have not occurred and are 
not likely to occur prior to the end of the current term of the 
licenses. Should Lockheed Martin decide to conduct any Phase II, at-sea 
exploration in connection with USA-1 or USA-4, the terms of the 
licenses require additional authorizations from NOAA and other federal 
reviewing agencies prior to the commencement of any such activities.
    Given the phased nature of these licenses and the uncertainty 
associated with possible commencement of Phase II activities, NOAA 
believes it would be premature at this stage to conduct the types of 
environmental reviews suggested by commenter. Lockheed Martin has not 
detailed the specific location(s) within the licensed exploration areas 
where any future at-sea activities would be conducted. The company has 
also not detailed the specifics of any exploration techniques, 
equipment or intensity. Absent this type of information, any 
environmental review conducted by NOAA would be speculative at best. 
Instead, NOAA believes that environmental reviews, including those that 
may be required under NEPA, are appropriate once Lockheed Martin has 
decided to pursue NOAA authorization for Phase II activities. Such 
environmental review will be subject to public review and comment, and 
NOAA encourages CBD to participate in that process should Lockheed 
Martin seek approval for Phase II activities.
    Comment 2: The extension is an action that must comply with the 
Endangered Species Act, Marine

[[Page 81531]]

Mammal Protection Act and Migratory Bird Treaty Act.
    Response: NOAA disagrees. As described in the response to comment 1 
above, no action is presently triggered or authorized pursuant to the 
USA-1 and USA-4 license extensions that has the potential to affect 
protected species under the cited statutes. As such, NOAA is unaware 
of, and commenter has not identified, any outstanding obligations with 
respect to these statutes.
    Comment 3. The initial phase of the application at issue here will 
be comprised of surveys and other activities in preparation for mining. 
These exploratory surveys have significant environmental impacts 
including acoustic impacts from the use of seismic survey airguns, 
mining and lighting impacts. Deepsea [sic] mining also generates waste, 
noise, fuel or other spills, vessel traffic, sediment plumes, habitat 
disturbance and destruction, and water quality problems. The license 
should be denied because it is untenable for NOAA to make a finding 
that the exploration proposed in the application cannot reasonably be 
expected to result in significant adverse effect [sic] on the quality 
of the environment as required for issuing a license under 15 CFR 
970.506. Any license should be conditioned on measures that avoid these 
environmental impacts.
    Response: NOAA disagrees. Contrary to the assertion of the 
commenter, the current license extensions do not authorize the at-sea 
activities described in the comments. The requested license extensions 
only extend the term of the licenses and do not authorize the types of 
at-sea exploration activities cited by commenter. Indeed, conducting 
such activities may be unnecessary as Lockheed Martin stands in a 
unique position as a pre-enactment explorer (i.e., the company 
conducted its exploration activities including the acquisition of 
manganese nodules from the seafloor for assay purposes prior to the 
enactment of the DSHMRA). When USA-4 was transferred to Lockheed Martin 
in 1994 following the relinquishment of the license from the consortium 
led by Kennecott Corporation, Lockheed Martin's request for the 
transfer of the license stated that the company had no plans to conduct 
at-sea exploration activities since it already had conducted sufficient 
exploration prior to the enactment of DSHMRA. As noted above, when and 
if Lockheed Martin decides to seek authorization to commence Phase II 
activities, such authorization will trigger appropriate review of the 
environmental impacts associated with the proposed at-sea exploration 
activities.
    The CBD comments also contain an extensive discussion of the 
impacts of airguns used to conduct seismic surveys. No such activities 
have been proposed, let alone authorized.
    Additionally, throughout the CBD comments the impacts of mining of 
the deep seabed are also discussed. Mining has not been authorized nor 
proposed. DSHMRA establishes a licensing requirement for exploration 
activities and a separate permit requirement for commercial recovery 
(i.e., mining). Both exploration licenses expressly prohibit the 
licensee from even testing mining equipment without receiving further 
authorization from NOAA. To date, no such authorizations have ever been 
requested.

    Federal Domestic Assistance Catalog 11.419

Coastal Zone Management Program Administration.

    Dated: December 22, 2015.
Christopher C. Cartwright,
Associate Assistant Administrator for Management and CFO/CAO, Ocean 
Services and Coastal Zone Management, National Oceanic and Atmospheric 
Administration.
[FR Doc. 2015-32889 Filed 12-29-15; 8:45 am]
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