Developing a Regulatory Framework for Mineral Exploitation in the Area

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3 Cntents Page Sectin 1 Executive summary 2 Sectin 2 Sectin 3 framewrk fr the Explitatin Regulatins Summary f the respnse f the Legal and Technical Cmmissin t Stakehlder Survey submissins 4 39 Sectin 4 Summary f high level issues 40 Sectin 5 actin plan 45 Sectin 6 Making a submissin 52 Published March 2015 by: Internatinal Seabed Authrity Prt Ryal Street Kingstn Jamaica 1

4 Sectin 1: Executive summary The purpse f this Reprt f the Legal and Technical Cmmissin (the Cmmissin) is t respnd t the Cuncil s decisin (ISBA/20/C/31, paragraph 3) by which the Cuncil requested the Cmmissin t cntinue its wrk n the s gverning explitatin as a matter f pririty and t make available t all members f the Authrity and all stakehlders a draft framewrk fr the f explitatin as sn as pssible after the February 2015 meeting. This Reprt attempts t demnstrate the size (bth depth and breadth) f the task in frmulating rules, s and prcedures fr explitatin. It is als a statement f prgress t date and indicates the immediate next steps and actins. The Reprt cntains the fllwing sectins: Sectin 1: Executive summary Sectin 2: framewrk fr the Explitatin Regulatins 1 Sectin 3: Summary f the Cmmissin s respnse t Stakehlder Survey submissins Sectin 4: Summary f high level issues Sectin 5: actin plan fr way frward t mid The Reprt was develped and finalised fr immediate circulatin t Members f the Authrity and all stakehlders fllwing the February Sessin f the Cmmissin, which was held frm 16 t 27 February Stakehlder grups fllw the same brad grupings that respnded t the Survey and as reprted by the Cmmissin t Cuncil in 2014 and are cnsidered t include: cntractrs, internatinal rganizatins, nngvernment rganizatins, scientific institutins and universities, private entities, and individuals. Respnses t this Reprt frm Members f the Authrity and all stakehlders are invited by mid-may s that the Secretariat can prepare an update fr the sessin f the Cmmissin in July The Cmmissin will, in its Chair s Reprt t Cuncil in July 2015: (i) prvide a summary f prgress and next actins n the develpment f the Explitatin Regulatins and (ii) include a latest versin f the framewrk fr the Explitatin Regulatins in an annex t the Chair s Reprt. 1 Disclaimer: This draft regulatry framewrk shuld nt t be seen as draft s. The framewrk is wrk in prgress by the Cmmissin as it mves incrementally and in a cnsultative manner with Members f the Authrity and all stakehlders twards the s themselves. 2

5 Sectin 1: Executive summary Sectin 2 f this Reprt reflects the draft framewrk fr the Explitatin Regulatins. It currently cntains 10 parts and 2 annexes. Specifically nt included at this time are 4 areas: (i) the financial and payment terms mechanism; (ii) a mining inspectrate; (iii) revenue management by the Authrity and (iv) the Enterprise. The Cmmissin will prvide further details f pssible financial and payment mechanisms t Cuncil in July fllwing further cnsideratin. 2 N further wrk n the remaining 3 items is prpsed at this time. Additinally, the tw annexes t the draft framewrk, addressing applicatin prcedure and standard cntract clauses, reflect 5 further issues that have been identified fr further wrk. These are: (i) dealings; (ii) annual reprts; (iii) insurance; (iv) suspensin and terminatin f cntracts and penalties and (v) revisin. Sectin 3 f this Reprt is a summary f the Cmmissin s respnse t the Stakehlder Survey submissins. It further encurages respnses frm Members f the Authrity and all stakehlders t this Reprt by mid-may in rder t further enrich the interactive dialgue that is key t the successful develpment f the explitatin s. Sectin 4 f this Reprt cntains a brief cmmentary n 13 high level issues identified in the respnses t the Stakehlder Survey and the wrk f the Cmmissin t date. These issues must be addressed in the prcess f develping and finalising the explitatin s. Once again feedback is being sught including: (i) n high level issues that may have been mitted; (ii) n the brief cmmentary prvided in regard t each f the issues, and (iii) suggestins n the way these issues may be addressed in the develpment f the regulatry framewrk. Sectin 5 f this Reprt cmprises a actin plan. The plan at this time is cnsidered apprpriate t cntinue the further develpment f the s in a timely manner. It is anticipated it will develp ver time. The actin plan is drawn directly frm the draft framewrk and actins have been priritised accrding t when actins need t be initiated. It is premature t cnsider that actins will be cmpleted at this stage, as many will be initiated and nging fr sme time. The Cmmissin recgnises the imprtance f an pen, transparent and inclusive prcess in develping the explitatin framewrk and welcmes further stakehlder feedback. 2 It is intended that a discussin paper relating t the financial mechanism be circulated befre end March 2015 t all stakehlders fr cmment. 3

6 Sectin 2: framewrk fr the Explitatin Regulatins This Sectin 2 prvides an utline f a suggested structure fr future explitatin s tgether with a cmmentary against each cmpnent element f the regulatry framewrk and recmmended actins. The suggested legal framewrk is similar t that under the current explratin regime, that is, a unifrm set f headline s and a standardised cntract. 3 The aim is t develp a legal framewrk that is simple with clear bjectives and endrses established principles and practice where applicable. As nted in the Executive summary, there are fur areas f the regulatry framewrk that are nt addressed in this Sectin 2, being: 1. The payment mechanism: this is under separate discussin and an update n the financial regime will be presented at the Authrity s Annual Sessin in July Hwever, a separate discussin paper n the develpment f a payment mechanism will be issued by the Secretariat in advance f the Sessin; 2. The develpment and resurcing f a mining inspectrate within the Secretariat functin. It is recmmended that the administrative and enfrcement functins f a typical mining regulatr, envirnmental management agency and perhaps maritime security regime are benchmarked in due curse; 3. Revenue management by the Authrity, that is the allcatin f mnies received by the Authrity frm prductin prceeds; and 4. The peratin and effective participatin f the Enterprise. It is nt the intentin f the Cmmissin t undertake further wrk in respect f 2, 3 and 4 abve at this time. 3 See Article 153(3) and Annex III Article 3(5) f the Cnventin requiring an apprved plan f wrk t be in the frm f a cntract. 4

7 Glssary f abbreviatins APEIs BEP DSM EIA EIS EITI EMP EMS IRZ PRZ RRPs SEIA SEMP Areas f particular envirnmental interest Best envirnmental practice Deep seabed mining Envirnmental impact assessment Envirnmental impact statement Extractive Industries Transparency Initiative Envirnmental management plan Envirnmental management system Impact reference zne(s) Preservatin reference zne(s) Rules, s and prcedures (f the Authrity) Strategic envirnmental impact assessment Strategic envirnmental management plan 5

8 Suggested structure fr Explitatin Regulatins Title Preamble Objectives & verarching principles / purpse Part I Intrductin Use f terms and scpe Part II Applicatins fr apprval f plans f wrk fr explitatin in the frm f cntracts General prvisins Cntent f applicatins Frm f applicatins Certificate f spnsrship Financial & technical capabilities Previus cntracts with the Authrity Undertakings Applicatins fr apprval f plans f wrk with respect t a reserved area Equity interest in a jint venture arrangement Data and infrmatin t be submitted fr apprval f the plan f wrk fr explitatin Feasibility study Envirnmental impact statement Envirnmental management plan Scial impact assessment and actin plan Financing plan Clsure plan Size and lcatin f explitatin area cvered by the plan f wrk Fees Fee fr applicatins Prcessing f applicatins Receipt, acknwledgement and safe custdy f applicatins Public review f the Envirnmental impact statement and Envirnmental management plan [and Scial impact assessment and Clsure plan] Cnsideratin by the Legal and Technical Cmmissin Cnsideratin and apprval f plans f wrk fr explitatin by the Cuncil Independent technical expert wrking grup(s) / sub-cmmittees Part III Cntracts fr explitatin The cntract Rights f the cntractr Obligatins f the Authrity Legal title t minerals Duratin f cntracts / renewal Perfrmance requirements Cnservatin f the natural resurces f the Area Use f sub-cntractrs Vessels perating in the Area Prtectin f submarine cables and pipelines Health and safety 6

9 Training Peridic review f the implementatin f the plan f wrk fr explitatin Terminatin f spnsrship Respnsibility and liability Part IV Prtectin and preservatin f the marine envirnment Part VII Enfrcement, ffences and penalties Inspectin Offences & penalties Part VIII Settlement f disputes Disputes Prtectin and preservatin f the marine envirnment Envirnmental management Emergency rders Strategic envirnmental management plan Rights f castal States Envirnmental bnds and perfrmance guarantees Restratin and rehabilitatin f the marine envirnment Adaptive management apprach Seabed sustainability fund Envirnmental liability trust fund Human remains and bjects and sites f an archaelgical r histrical nature Part IX Other mineral resurce categries Part X Review Annexes t explitatin s Annex I Applicatin fr apprval f a plan f wrk fr explitatin t btain a cntract Annex II Standard clauses fr explitatin cntract plus schedules Part V Cnfidentiality Cnfidentiality f data and infrmatin Prcedures t ensure cnfidentiality Part VI General Prcedures Ntice and general prcedures Recmmendatins fr the guidance f cntractrs Duty t c-perate 7

10 descriptin 4 Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft Part I Intrductin Use f Terms and scpe Definitins applicable t the explitatin regime. The Explratin Regulatins 5 cntain relatively few terms and definitins. It is likely that the Explitatin Regulatins will include mre cmprehensive definitins t aid interpretatin. These will include thse already presented in the Explratin Regulatins, save as amended t reflect current practice. This sectin will evlve as the regulatry framewrk evlves. Definitins shuld reflect internatinally agreed and accepted definitins where pssible. Part II Applicatins fr apprval f plans f wrk fr explitatin in the frm f cntracts General Defines the entities that may apply fr a plan f wrk fr explitatin. Use wrding identical t that cntained in the Explratin Regulatins. Nt applicable. Frm f applicatins Defines requirement fr a plan f wrk in a frm t be prescribed in Annex I. Wrding in Explratin Regulatins remains relevant, hwever:- Shuld a plan f wrk fr explitatin cver multiple explitatin areas, within say the area cvered under an existing cntract fr explratin? Each distinct area f explitatin may have different physical characteristics and envirnmental cnditins. Optins available t the Authrity: (1) t request separate plans f wrk fr explitatin where there are material differences between explitatin areas and / r (2) t request separate dcuments (Feasibility study, Envirnmental impact statement (EIS) and Envirnmental management plan (EMP)) fr each explitatin area (as ultimately defined). Guidelines fr the Preparatin f a Plan f Wrk fr Explitatin need drafting, including a standard applicatin frm. Future develpment / licensing f an nline applicatin management system. Thught t be given t new ways f ding business as highlighted by the 4 Descriptin crrespnds t that cntained in the Explratin Regulatins, save fr any new, prpsed regulatry prvisin. 5 Refers t the Regulatins n Prspecting and Explratin fr Plymetallic Ndules in the Area (PN Explratin Regulatins), ISBA/19/C/17, 22 July

11 descriptin 4 Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft Cmmissin in the cntext f explratin and its impact(s) n explitatin applicatins. 6 Certificate f spnsrship Defines the requirement fr a certificate f spnsrship. Use wrding identical t that cntained in the Explratin Regulatins. Nt applicable. Financial and technical capabilities Previus cntracts with the Authrity A key prvisin fr the delivery f due diligence infrmatin abut an applicant. Cntent f Explratin Regulatin can be retained. Much f the wrding reflected in the Explratin Regulatin can be retained. Hwever, a greater level f detail will be required t evaluate financial capability and technical capability in cnnectin with the delivery f a plan f wrk fr explitatin, including the capability t deliver apprved develpment and prductin requirements and the delivery f EMP bligatins. Evaluatin criteria needed fr the Cmmissins assessment prcedures. T cnsider hw this is t be applied unifrmly acrss all cntractr entities. Details f existing cntract(s) fr explratin is imprtant in establishing a preference and a pririty in an applicant s plan f wrk fr explitatin. Any assessment prcess t cnsider that deliverables and bligatins under a cntract(s) fr explratin have been bserved. Further best practice t be develped frm natinal regimes and suggestins in the Stakehlder Survey. Guidelines fr the Preparatin and Evaluatin f Infrmatin relating t Financial capability and Technical capability t be drafted. Nt applicable. 6 See Summary Reprt f the Chair f the Legal and Technical Cmmissin n the wrk f the Cmmissin during the twentieth sessin f the Internatinal Seabed Authrity, ISBA/20/C/20, 16 July 2014 at para 31. 9

12 descriptin 4 Undertakings Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft Specific undertakings cntained in Annex III, Article 4(6) f the Cnventin. 7 Use wrding identical t that cntained in the Explratin Regulatin. Hwever, this maybe an pprtunity t mdify r clarify undertakings fundamental t delivery f plan f wrk / cntractual bligatins? Culd be used t include specific and fundamental cntract terms, fr example in respect f unfair ecnmic practices anticipated by Annex, Sectin 6(1)(b) f the Agreement 8, including disclsure f anti-cmpetitive practices and the bligatin t pay fees and ryalties etc. Cuncil culd cnsider incrprating additinal undertakings particularly in cnnectin with unecnmic practices. A technical wrking paper requires preparatin by an expert familiar with the internatinal trade issues raised by Annex, Sectin 6(1)(b) f the Agreement and specific RRPs drafted. Applicatins fr apprval f plans f wrk with respect t a reserved area Wrding in the Explratin Regulatins appears t suffice. T cnsider wrding in the light f the timing and peratinalizatin f the Enterprise. Nt applicable (at this stage). Equity interest in a jint venture arrangement Wrding in the Explratin Regulatins appears t suffice. Again, t cnsider wrding in the light f the timing and peratinalizatin f the Enterprise. Actin plan fr peratinalizatin f the Enterprise t be develped. Data and infrmatin t be submitted fr This draft shuld utline the dcuments, infrmatin Dcuments that wuld typically 9 be supplied in supprt f a plan f wrk fr explitatin culd include: See Guidelines fr the Preparatin f a Plan f Wrk fr Explitatin abve. 7 United Natins Cnventin n the Law f the Sea. 8 Agreement relating t the implementatin f Part XI f the United Natins Cnventin n the Law f the Sea f 10 December Typically refers t thse dcuments usually supplied under a land-based mining regime. See fr example, Mdel Mine Develpment Agreement, Internatinal Bar Assciatin (2011). 10

13 descriptin 4 apprval f the plan f wrk fr explitatin Feasibility study Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft and ther data required fr an applicatin. Cntent and structure t be defined fr explitatin activities. i. Feasibility study (r reprt); ii. Envirnmental impact statement (EIS); iii. Envirnmental management plan (EMP); iv. Scial impact assessment / statement and actin plan (this may be integrated int the EIS abve); v. Financing plan; vi. Clsure plan; vii. Training plan / prgramme; viii. [Emergency respnse and prcedures plan: althugh nt nrmally a separate dcument as it wuld be reflected elsewhere, given the cncept f emergency rders this culd be prvided as a separate dcument]; ix. [Health, safety and maritime security plan: again this can be integrated int the EIS]. See als Frm f applicatins abve cncerning separate dcuments r separate plans f wrk. Cntent t be adequate t assess cmmercial viability f prpsed explitatin activities by explitatin area. T be prepared in accrdance with gd mining industry practice and based n sund engineering and ecnmic principles and accmpanied by a reprt f an independent expert(s), including mining engineer. As part f the applicatin prcess, alternative develpment r prductin plans may be requested t ensure the ptimizatin (including timing) f prceeds f cmmercial prductin. See als individual dcument draft s fllwing. Guidelines fr the Preparatin and Evaluatin (criteria) f a Feasibility study t be drafted. Have any blueprint feasibility studies been develped fr DSM activities that can be adpted by the Authrity? (T ensure cnsistency and cmparability in applicatins). 11

14 descriptin 4 Envirnmental impact statement (EIS) Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft Cntent f EIS t be further defined / finalised and be resurce-categry specific. 10 An EIS must be: i. Based n the Envirnmental impact assessment (EIA) and n sund engineering and ecnmic principles and gd mining industry practice and verified by an independent envirnmental cnsulting firm. ii. Prepared in a language t facilitate review by interested parties plus a nn-technical summary. iii. Establish baseline f envirnmental cnditins (a key deliverable under the Explratin Regulatins). iv. An assessment f prject-related significant effects and impacts, including cumulative impacts. A draft EIS template can be fund in ISA Technical Study N: but requires further develpment and finalisatin. The EIA / EIS shuld endrse an inter-disciplinary apprach. The Stakehlder Survey highlighted a number f standards and resurces fr EIA / EIS preparatin t be taken accunt f in develping a mdel EIS. 12 The cncept f an Envirnmental Impact Area may need t be develped t cver areas beynd the explitatin area(s), hrizntally and vertically (and cumulative impacts) where significant impacts may ccur. EIS template in Technical Study N.10 t be reviewed and updated. Guidelines fr the Preparatin and Evaluatin f an Envirnmental Impact Statement t be drafted. 13 Shuld include simple rating criteria. Needs t be resurce-categry specific. It is recmmended that the abve be undertaken by an expert and a draft template and guidelines circulated fr cmment by interested parties. 10 As knwledge is imprved, a mre structured prcess f screening and scping an EIS can evlve. 11 Envirnmental Management Needs fr Explratin and Explitatin f Deep Sea Minerals, ISA Technical Study N. 10 (2012) at Fr example, Cmmissin fr Envirnmental Assessment Bidiversity in EIA & SEA Backgrund Dcument t CBD Decisin VIII/28: Vluntary Guidelines n Bidiversity-Inclusive Assessment April 2006; UNEP Envirnmental Impact Assessment and Strategic Envirnmental Assessment: Twards an Integrated Apprach 2004; EIS Slwara 1 Prject Nautilus Minerals Niugini Ltd. 13 Simple set f criteria fr rating EISs culd be helpful. See fr example, U.S. Envirnmental Prtectin Agency, Envirnmental Impact Assessment Rating System Criteria. 12

15 descriptin 4 Envirnmental management plan (EMP) Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft Structure and cntent f EMP t be drafted / defined. An EMP must be / include: i. Based n the EIS and n sund engineering and ecnmic principles and gd mining industry practice (including IFC Perfrmance Standards 1 and 6 14 and ther relevant internatinally recgnized standards 15 ) and verified by an independent envirnmental cnsulting firm. ii. Prepared in a language t facilitate review by interested parties. iii. Methdlgies t be emplyed, sampling and archiving, lcatin f mnitring statins, measurable criteria and threshld indicatrs. iv. Shuld reflect parameters fr and functinality f Preservatin reference znes (PRZs) and Impact reference znes (IRZs). v. Measures / plans fr mnitring, management, cnservatin, remediatin, restratin / rehabilitatin 16 and cntrl including thse t avid, minimise, mitigate, rehabilitate and ffset, where apprpriate, impacts n bilgical diversity within the impacted area and plans t prevent, minimise, mitigate impacts t water clumn. EMP t be supprted by an apprved envirnmental management system (see Envirnmental management belw). Subject t inspectin regime and frequent (say, every 2 years?) independent audit. Preparatin (and delivery) t reflect Best envirnmental practice (BEP) and applicatin f the precautinary apprach. Any cnditins attaching t EMP apprval t be utcmes based, measurable, clear, reasnable and enfrceable. See als Strategic envirnmental management plan under Part IV belw: a need fr c-peratin and harmnisatin with cntractr EMP prcess. EMP template needs t be drafted. Guidelines fr the Preparatin and Evaluatin f an Envirnmental management plan t be drafted. Similar t EIS, it is recmmended that the abve be undertaken by an expert and a draft template and guidelines circulated fr cmment by interested parties. Guidelines fr the design and mnitring f Preservatin Reference Znes and Impact Reference Znes t be develped. This may require an expert wrking grup. Pssible multi-stakehlder wrkshps pst develpment f EIS and EMP templates. 13

16 descriptin 4 Scial impact assessment and actin plan (SIA) Financing plan Clsure plan Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft Cntent / actin plan t be defined fr explitatin activities and sciecnmic impacts in the Area. Structure and cntent f plan t be develped. Structure and cntent f plan t be develped. Can be integrated with EIS. 17 Given the remteness f explitatin activities, n immediate cmmunities r individuals ptentially significantly affected by peratins. Other users f the marine envirnment t be cnsidered. Cnsideratins fr a scial actin plan culd include cntributins t marine research (e.g. the funding f research within Areas f Particular Envirnmental Interest (APEIs)) and incremental training prgrammes. See als Seabed Sustainability Fund under Part IV belw. The financing plan will set ut the details f hw a cntractr will finance the capital expenditure, wrking capital needs f the develpment and prductin phases and envirnmental management bligatins. Regulatins and / r cntract t prvide fr a cnsent mechanism t any charge, mrtgage r pledge where such security is required by a financial institutin ver the mineral resurces / interest in a cntract fr explitatin. A clsure plan raises many issues. It is seen as a dynamic plan that requires regular review and updating and must anticipate ptential clsure f an explitatin area prir t the expiratin f any plan f wrk. At this pint it is difficult t assess the exact cntents f a Clsure plan fr the Area, but may include:- Discussin t be advanced n a scial actin plan fr the Area and a call t stakehlders t make cntributins t this discussin. Template Financing plan t be drafted. Template Clsure plan and Guidelines fr the Preparatin and Implementatin f a Clsure plan t be drafted. 14 Endrsed in the Stakehlder Survey. 15 Mdified fr DSM-specific impacts, as the case may be. 16 See Restratin and rehabilitatin f the marine envirnment belw. 17 EIS in ISA Technical Study N. 10 reflects Sci-ecnmic impacts supra nte 8 at page

17 descriptin 4 Size and lcatin f explitatin area(s) cvered by the plan f wrk Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft Guidance criteria fr determining the size (and lcatin) f explitatin area(s). basic decmmissining (remval f installatins, plant and machinery); Restrative bligatins at the time f clsure? Need fr a guarantee r bnd? Pst clsure envirnmental management and mnitring bligatins t be defined. Als t determine the perid / duratin f pst clsure mnitring apprpriate benchmark (years)? The Cnventin requires that RRPs be established in accrdance with bjective criteria fr the size f areas being: stated prductin requirements, the state f the art f technlgy and relevant physical characteristics f the areas which shall be neither smaller nr larger than are necessary t satisfy this bjective. 18 Sme stakehlders nted that such RRPs shuld nt simply be a determinant f size but als f lcatin and that the Authrity reserve the right t determine mining blck rder 19 (adaptive management? 20 ). Albeit, stakehlder cmments regarding blck rder were directed at envirnmental cnsideratins, the pint is equally valid frm the viewpint f practices such as high-grading. What will the Authrity s plicy, if any, be here? An average balanced grade? Hw will / shuld this be defined? 21 There are matters f plicy t be addressed by the Cuncil. Specific guidelines then need t be drawn up t identify the criteria t be applied in assessing the size and lcatin f explitatin area(s). It is likely that additinal expert input is required here and / r initial thughts f cntractrs as t their prpsed explitatin areas and prductin requirements. 18 Annex III, Article 17(2)(a) f the Cnventin. 19 This may necessitate the sub-divisin f explitatin areas int blcks. T be balanced with applicant s desire fr cmmercial flexibility t manage explitatin peratins. 20 Initial duratin f explitatin peratins, review perids and the intensity f explitatin peratins are als relevant cnsideratins under an adaptive management apprach. 21 See als Sectin 4 t this Reprt: Summary f high level issues. 15

18 descriptin 4 Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft The US Deep Seabed Hard Minerals Resurces Act makes reference t bth size and lcatin and t a lgical mining unit which includes ecnmic and envirnmental cnsideratins as criteria. 22 Principles ( criteria ) fr determining the size and lcatin f the explitatin area suggested in the framewrk culd include (and reflecting stakehlder respnses): - The prductin requirements f the applicant (Cnventin) / the cmmercial viability f the explitatin area; The state f the art technlgy t be emplyed (Cnventin); The relevant physical characteristics f the area (Cnventin); The envirnmental cnsideratins including the lcatin f the explitatin area(s) and the intensity f the explitatin peratins; The prximity f the explitatin area(s) t adjacent explratin and / r explitatin areas cvered under ther third party plans f wrk / reserved areas; 23 The prximity f explitatin area(s) t marine prtected areas (including APEIs) and vulnerable marine ecsystems; The size and lcatin f PRZs and IRZs (depending n design criteria see Envirnmental management plan abve); U.S. Cde 1413, License and permit applicatins, review, and certificatin. 23 There is a real pssibility that explitatin peratins in ne area may impact adjacent explratin r explitatin areas thrugh smthering by peratinal and discharge plumes. This needs t be addressed and buffer znes cnsidered. 16

19 descriptin 4 Fee fr applicatins Receipt, acknwledgement and safe custdy f applicatins Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft Wrding can be adapted frm the explratin s. Wrding can be adapted frm the explratin s. The prximity f explitatin area(s) t castal States (including EEZs and depsits); The impact n ther users f the prpsed explitatin area(s); The prximity t submarine pipelines and cables. The actual csts f prcessing explitatin applicatins will be cnsiderably higher than that under explratin applicatins given the mre stringent dcumentatin reviews and inspectins. Equally, decisins will need t be made cncerning the csts fr independent evaluatin prcesses (e.g. the EA / EMP) and wh these are t be incurred by. Additinal administratin, revisin, renewal and cnsent-type fees will likely arise under a cntract fr explitatin. Nte: the 1994 Agreement requires the payment f an annual fee frm the date f cmmercial prductin. 24 This will be reflected in the Financial terms Part f the s, when drafted. N cmment. It will nt be pssible t set an applicatin fee at this stage until the review, assessment and administratin prcesses are fully defined. Nt applicable. 24 Annex, Sectin 8(1)(d). The pint f cmmencement f cmmercial prductin is bradly defined in Annex III, Article 17(2)(g) f the Cnventin. There will be a number f factrs that pint tward cmmercial prductin having been reached. In land-based mining this can be a blurred area and the extent t which it is pssible t define an perating capacity threshld may be preferable. 17

20 descriptin 4 Public review f the Envirnmental impact statement and Envirnmental management plan [and Scial impact assessment and Clsure plan] Cnsideratin by the Legal and Technical Cmmissin Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft An pen, inclusive and cst-effective decisinmaking prcess needs t be develped fr the review f specific dcuments by interested parties. The cntent f this (which can be adapted frm the Explratin Regulatins) tgether with evaluatin guidelines is key fr cntractrs element f certainty as t prcess, timings and evaluatin Under the principle f transparency in decisin-making n matters likely t have a significant impact n the envirnment (including sci-ecnmic impacts), an-inclusive, pen review prcess needs t be develped, particularly fr the EIS / EMP, SIA and Clsure plans. Public cncerned / ptentially impacted are nt immediately identifiable but mankind as a whle has, arguably, a vested interest. While a public review and engagement prcess is cmmn practice in many natinal jurisdictins, this requires much thught fr activities in the Area, including the practicalities f any prcedure, timings and csts. A number f alternatives have been put frward by stakehlders, including review mechanisms by independent experts and panels and the public availability f relevant dcuments and infrmatin fr review. A re-write f this is likely required t prvide fr all the necessary eventualities fr the Cmmissin s cnsideratin f a plan f wrk and its subsequent recmmendatin(s) t Cuncil fr apprval r rejectin f an applicant s plan f wrk fr explitatin. Time limits and milestnes in the prcess will als be critical t cntractrs as well as the evaluatin criteria n which the Cmmissin will ultimately base their recmmendatins t Cuncil. This culd include any reasnable cnditins 25 prpsed A wrking paper needs t be drafted setting ut the public participatin ptins and prcedures available, including independent expert review(s), based n stakehlder submissins and best practice regimes. The paper can then be circulated t stakehlders fr cmment. Detailed guidelines will be needed in respect f evaluatin criteria t be used by the Cmmissin. A technical wrking paper needs t be drafted t elabrate n the cncept f sund cmmercial principles (see 1994 Agreement, 25 An indicatin f reasnable cnditins and hw this will be interpreted shuld be cnsidered. Plans f wrk will nt be identical. Cnditins culd include: the prvisin f a bnd r guarantee; the purchase and maintaining f a specified categry f insurance; any specific mnitring and reprting bligatins (ver and 18

21 descriptin 4 Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft criteria. by the Cmmissin t the Cuncil as part f that recmmendatin prcedure. An applicatin fr the apprval f a plan f wrk fr explitatin will require apprval f all dcuments 26 submitted and must ensure that the necessary review and public participatin prcedures have been fllwed and accunt taken f submissins received by the Cmmissin frm interested parties. Annex, Sectin 6(1)(a)). 27 A technical wrking paper is required t elabrate n substantial evidence f risk f serius harm t the marine envirnment in the case f area(s) disapprved fr explitatin. 28 Cnsideratin and apprval f plans f wrk fr explitatin by the Cuncil Independent technical expert wrking grup / sub-cmmittees Wrding can be adapted frm the Explratin Regulatins. Cnsider setting up expert wrking grups r sub-cmmittees t supprt the wrk f the Cmmissin. T cnsider whether Cuncil shuld take an additinal gvernance step f satisfying itself, particularly where a public review prcess is required, that submissins frm any review mechanism have been duly taken accunt f in the decisinmaking prcess and that the applicatin cnfrms, t best f knwledge and belief at the time, that say Annex, Sectin 6 f the Agreement has been cmplied with. Given the pressures that applicatins fr plans f wrk fr explitatin will place n the existing assessment and decisinmaking structure, additinal expert wrking grups r subcmmittees may be required. Shuld any specific Cuncil prcedures and criteria be develped here? Shuld this be frmalised under the regulatry framewrk? abve thse under the s); the appintment f bservers; the duratin f cnsent fr an envirnmental management plan and any cnditins relating in whle r part t an adaptive management apprach. Cnditins will be recrded in a relevant schedule t a cntract fr explitatin. 26 Based n the dcuments (and ther infrmatin requested) the Cmmissin will need t be satisfied that an applicant has the capability and systems t deliver health and safety and envirnmental requirements; that the applicant has adequate technical and financial capability t deliver the plan f wrk and that prject ecnmics are sund etc. 27 This prvisin stipulates that as part f the prductin plicy f the Authrity, the develpment f the resurces f the Area shall take place in accrdance with sund cmmercial principles. A marine minerals plicy and prgramme dcument will need drafting when data and infrmatin n resurces in the Area is mre cmprehensive. 28 See Regulatin 21(6)(c) PN Explratin Regulatins. 19

22 descriptin 4 Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft Part III Cntracts fr explitatin The Cntract Rights f the cntractr Obligatins f the Authrity Legal title t minerals Duratin f cntracts / renewal Wrding can be adapted frm the Explratin Regulatins. Wrding can be adapted frm the Explratin Regulatins. T prvide clarity n any bligatins f the Authrity. T prvide that legal title passes n recvery but with any restrictins? This draft relates t security f tenure and a key In additin t the standard clauses, specific cnditins may be apprved by the Cuncil based n recmmendatins by the Cmmissin and reflected in the relevant Schedule t the Cntract. It wuld seem apprpriate t identify, as exhaustively as pssible, what rights, including exclusive rights, are being granted here, unless it is felt clear that the definitin f explitatin cvers this? Fr example, the definitin f explitatin des nt include explratin but shuld be a right t explre in the explitatin area(s). T the extent that any duties f r bligatins n the Authrity are unclear r nt dealt with elsewhere, a prvisin shuld be drafted t prvide clarity, and reflected in the standard cntract as apprpriate. Are there any restrictins that can / shuld be placed n the transfer f title where the cntractr is say in breach? Fr example, a prhibitin n sale / dispsal until all fees, ryalties, prfit-share etc. have been paid r suitable arrangements made. The Cnventin prescribes limited bjective criteria: 30 The ecnmic life f the mining prject depletin f re, the useful life f mining equipment and prcessing Nt applicable. Cnsideratin t be given t this by the Secretariat. Cnsideratin t be given t this by the Secretariat. Cnsideratin f the phrase recvery in accrdance with the Cnventin 29 requires a technical wrking paper t be drafted. Further understanding f cntractr develpment, prductin and ecnmic mdels and plans is required 29 Annex III, Article 1 f the Cnventin. 30 Annex III Article 17(b)(iii) f the Cnventin. 20

23 descriptin 4 Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft cntractual term fr cntractrs. facilities and cmmercial viability; T permit cmmercial extractin; and Reasnable time fr cnstructin f cmmercial-scale mining and prcessing systems. But (imprtant wrding): the ttal duratin f explitatin, hwever, shuld als be shrt enugh t give the Authrity an pprtunity t amend the terms and cnditins f the plan f wrk at the time it cnsiders renewal in accrdance with [RRPs] which it has adpted subsequent t apprving the plan f wrk. Duratin will likely be resurce categry specific. The Stakehlder Survey identified perids f tenure ranging frm an initial 10-year perid t a general cnsensus range f years and renewal (extensin) perids f 5-10 years (at least in the case f plymetallic ndules). Duratin is als relevant t the develpment and revisin f a financial payment mechanism. It is suggested (frm the Stakehlder Survey) that a substantive review perid ccur at apprximately 5 years int the cntract term. The specific cnditins attached t that review shuld be established at the time f the initial applicatin fr a plan f wrk fr explitatin. It may be pssible t apprve stages f explitatin peratins. In the early phases f this industry, the nature f the depsit may require a gradual prcessin t cmmercial prductin. If it subsequently cmes t light that the depsit extent is less than riginally frecast, the duratin (r size f area) needs t be adjusted. Unecnmic prductin and recvery is t be avided. Cmmencement f mining: as sn as pssible but a lgical here. A balance needs t be established between the cmmercial requirements f cntractrs and the ability f the Authrity t amend terms and cnditins in accrdance with revised RRPs. A wrking paper needs t be develped fr circulatin t stakehlders. Guidelines need t be develped fr the fllwing: Criteria fr cntract duratin resurce specific. Applicatin and evaluatin criteria fr a substantive review. Applicatin and evaluatin criteria fr renewal f an explitatin cntract. 21

24 descriptin 4 Perfrmance requirements Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft This draft shuld specify the prductin bligatins under a plan f wrk. develpment f prductin areas within the explitatin area leading t maximum ecnmic recvery plus develpment f infrastructure and transprting and prcessing cnstructin. As t perids f renewal / extensin, thught will need t be given as t whether this shuld be treated as a fresh applicatin and subject t identical rules f prcess and prcedure as the riginal applicatin? Bearing in mind the inclusive and participative apprach being taken. A starting pint fr the s culd be: Specify a maximum initial perid; Define the parameters f any renewal against specified criteria (depletin f re, cmmercial viability, cntractr nt in material default) and dcumentatin needs; Prvide fr a substantive review perid at the end f first 5 years based n pre-determined perfrmance and ther criteria and included in the cntract with the ability f the Authrity t adjust terms etc. And ther review perids at pre-defined timeframes r triggered n the happening f specific events. Under the Cnventin 31, the Authrity is bliged t establish a maximum time interval, after the explratin stage is cmpleted and the explitatin stage begins, t achieve cmmercial prductin. Allwance here is t be given fr cnstructin time and unavidable delays. Then fllwing cmmercial prductin, the Authrity shall within reasnable limits and taking int cnsideratin all relevant factrs require the peratr t maintain cmmercial prductin Guidelines fr the evaluatin f Prductin perfrmance requirements under a cntract fr explitatin t be drafted. T include key perfrmance criteria and indicatrs. Cuncil t cnsider as a matter f plicy, in 31 Annex III Article 17(2)(c) f the Cnventin. 22

25 descriptin 4 Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft thrughut the perid f the plan f wrk. Need t elabrate n taking int cnsideratin all relevant factrs. That is, in practice, what factrs will ptentially delay, halt r suspend cmmercial prductin? Technical and ecnmic cnditins will be ne factr. The mining plan and estimated date f cmmercial prductin will be assessed during the evaluatin phase (Feasibility study). The apprved Feasibility study lcks the cntractr in t the prductin undertakings in that study. A cut-ff pint needs t be adpted where n cmmercial activity has taken place and t affrd ther peratrs the pprtunity f develping the resurces in that area. The US Deep Seabed Hard Minerals Act prvides a cut-ff pint f 10 years, unless a cntractr can shw just cause. 32 Equally, fr any perids f inactivity, shuld the cntractr be required t pay a surface rent? Arguably, yes but at what rate / level? Als prvisin shuld be made fr a cntractr t apply fr a suspensin in cmmercial prductin due t say ecnmic cnditins (see als Revisin clause in the cntract). Perfrmance requirements expected f the cntractr are key and arguably frm fundamental terms f the cntract. Flwing frm the Feasibility study, key perfrmance criteria and indicatrs shuld be established. Guidelines will be needed. Fr example, the Feasibility study shuld prvide prductin estimates fr the mining peratin; where recvery falls belw such agreed estimates by a pre-determined percentage, the Authrity shuld be in a psitin t require the cntractr t imprve the efficiency discussin with relevant stakehlders, a cut-ff pint fr cmmercial inactivity. 32 See 30 U.S. Cde 1417, Duratin f licenses and permits. 23

26 descriptin 4 Cnservatin f the natural resurces f the Area 33 Use f sub- Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft General bligatin t avid unnecessary waste. T specify the bligatins n a cntractr where etc. f the mining peratin. Frm a cmmercial perspective, a cntractr shuld be permitted t make minr changes t an apprved prgramme f activities withut recurse t the Authrity. Hwever, any material changes shuld require the Authrity s prir apprval. The distinctin between minr and material shuld be discussed and agreed during the applicatin and apprval prcess and als reflected in any guidelines. It is usual in a land-based mining cntext that an peratr is required t undertake capacity tests f the mining equipment. Again, this needs t be cnsidered. The fllwing culd als be included in this sectin: Prductin takes place in accrdance with sund cmmercial principles (see Cnsideratin by the Legal and Technical Cmmissin abve); N subsidizatin f activities; N discriminatin; Stipulate Cuncil s pwers t investigate and take measures. T permit the Authrity t impse reasnable cnditins t prevent waste. T permit the Cuncil t issue cnservatin measures t prmte the cnservatin f the natural resurces fr future generatins. Visibility f prcessing and treatment f the re shuld be stipulated. Cntractr s right t sub-cntract but als cntractrs t extract A plicy in respect f waste management needs t be develped. Nt applicable. 33 Article 145(b) f the Cnventin. 24

27 descriptin 4 cntractrs Vessels perating in the Area Prtectin f submarine cables and pipelines Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft sub-cntractrs are engaged. T specify the bligatins n a cntractr in relatin t vessels undertaking activities in the Area. T specify the bligatins n all parties including ntificatin prcedures. 34 the necessary guarantees fr sub-cntractr perfrmance. The use f sub-cntractrs shuld be addressed in the Feasibility study full disclsure. Requirement fr vessels engaged in explitatin activities t remain in Class and be subject t general internatinal legal bligatins and apprpriate cnventins. Need t establish clear line f duties and respnsibilities and cperatin between the Authrity and the Internatinal Maritime Organizatin (IMO). Prcedures t be established t ntify submarine cable peratr rganizatins f a plan f wrk applicatin shwing c-rdinates f prpsed explitatin area(s). Reprting / ntificatin prtcls t be established. Discussins between the Authrity and the Internatinal Maritime Organizatin t be frmalised. Discussins between the Authrity and relevant representative rganizatins frmalised. Health and safety T specify the additinal measures that supplement existing internatinal agreements. 35 T establish what supplementary duties and bligatins the Authrity has as a regulatr in cnnectin with health and safety tgether with applicable standards. Training f emplyees in health and safety prcedures. Labur standards als require cnsideratin. T determine additinal internatinal / DSM-specific standards and the extent f the Authrity s remit / duties and respnsibilities. Training Training bligatins n a cntractr. T be submitted as part f the dcumentatin requirements n applicatin fr a plan f wrk. Thught t be given t the needs f the future industry and training prgrammes targeted accrdingly. Training bligatins culd als be facilitated under the requirements f a Scial T establish areas f skills and talent shrtages key t the develpment f the DSM industry. 34 Arguably an bligatin fr spnsring States t have RRPs in place as well. See Article 113 f the Cnventin. 35 See Article 146 f the Cnventin. Relevant internatinal agreements / practices include: Internatinal Cnventin fr the Safety f Life at Sea and Internatinal Management Cde fr the Safe Operatin f Ships and fr Pllutin Preventin (IMO). 25

28 descriptin 4 Peridic review f the implementatin f the plan f wrk fr explitatin Terminatin f spnsrship Respnsibility and liability Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft As per cntent f Explratin Regulatins. As per Explratin Regulatins. As per Explratin Regulatins. impact assessment and cntributin, that is, incremental training prgrammes including tertiary schlarships etc. Nte: training bligatins f cntractr persnnel t in matters f ccupatinal health and safety etc. Peridic review at 5-year intervals. Cntractr is bliged t implement / adjust its prgramme f activities fr the next five year perid (adaptive management apprach). Greater clarity and guidance will be needed ver the substance and cntent f these reviews fr explitatin prgrammes. Additinally certain events will require ntificatin and perhaps the prductin f incident r exceptin reprts. Fr example, if cmmercial prductin falls belw average targets, casualties r the achievement f milestnes. Specific cnditins may be impsed which require mre regular reprting. Reprting is bviusly a key area f gvernance under the regime but it needs t be targeted and relevant t the Authrity s rle as regulatr. What bligatins remain with the cntractr pst terminatin? Des a cntractr remain liable fr say EMP mnitring bligatins? Wrding f the Explratin Regulatins principally reflects the Cnventin. 36 The liability f the cntractr is fr wrngful acts. There is als an verlap in respnsibility and liability under the laws f a spnsring State. Strict liability may be impsed under natinal law. The area f liability and redress in the Area particularly as Guidelines n Prcedures and Infrmatin Requirements fr Review t be drafted. T establish clarity n pst terminatin bligatins fr a cntractr. Legal wrkshp required t explre and develp further principles f respnsibility and liability in the Area. 36 Annex III, Article

29 descriptin 4 Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft regards envirnmental damage remains at an embrynic stage f develpment. 37 Calls fr a separate wrking grup t lk at this issue were made in the Stakehlder Survey. Part IV Prtectin and preservatin f the marine envirnment Prtectin and preservatin f the marine envirnment General wrding in Explratin Regulatins t be adapted. Acknwledgement f the general principles and bligatins within the explratin s shuld remain. That is, applicatin f the precautinary apprach, BEP, measures t cntrl pllutin. Shuld als specify an adaptive management apprach as part f BEP. A vast amunt f wrk needs t be perfrmed in this area frm agreeing the threshlds f serius harm t the efficacy f PRZs and IRZs, develping wrkable envirnmental targets and indicatrs and the applicatin f a precautinary-risk management framewrk. Prescriptive s and detailed guidelines will be the ultimate utput here; hwever, it is t early t draft the same withut input frm experts, interested stakehlders, relevant internatinal rganizatins (e.g. IMO in respect f marine pllutin) and knwledge advancement. Dumping: the 1972 Lndn Cnventin 38 and the 1996 Prtcl t the Lndn Cnventin currently exclude the dumping f wastes r ther matter cnnected with seabed mining activities frm its scpe. Mre specifically Article 1(4)(3) f the 1996 Prtcl states [t]he dispsal r strage f wastes r ther matter directly arising frm, r related t the explratin, This area requires the frmatin f targeted expert wrkgrups cnsisting f a brad range f stakehlders, including relevant internatinal rganizatins. Specific cnsideratin f dumping RRPs. 37 The Seabed Disputes Chamber f the ITLOS nted [a]rticle 304 pens the liability regime fr deep seabed mining t new develpments in internatinal law, either under the existing regime r under custmary internatinal law. This is further endrsed by the Cnventin which bliges the ISA Assembly t prmte internatinal c-peratin cncerning activities in the Area and t encurage the prgressive develpment f internatinal law relating theret. 38 Cnventin n the Preventin f Marine Pllutin by Dumping f Wastes and Other Matter. 27

30 descriptin 4 Envirnmental management Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft T peratinalize the EMP. explitatin and assciated ff-shre prcessing f seabed mineral resurces is nt cvered by the prvisins f this Prtcl. It wuld thus seem that the dispsal r strage f waste r ther matter directly arising frm activities in the Area will need t be regulated by the Authrity as the cmpetent agency / internatinal bdy. What will cnstitute dumping in the Area? E.g. the deliberate dispsal f sediment frm n-bard prcessing and vessels and mining cllectr in emergency situatins? What prtectin measures will be needed (pssible c-peratin between the Authrity and the IMO)? Regulatins shuld be drafted and the terms fr say an EMP shuld / culd reflect specific waste assessment framewrk(s), mnitring and reprting bligatins cnnected with the dumping f waste (as defined). The OSPAR Guidelines fr Mnitring the Envirnmental Impact f Offshre Oil and Gas Activities ( ) prvide a sund basis and guide aimed at envirnmental mnitring (the design and cnduct f mnitring prgrammes) f discharges frm il and gas activities. This can be adapted fr the specific requirements f explitatin activities tgether with ther relevant best practice identified in the Stakehlder Survey and thrugh future expert / wrkshp engagement. This shuld blige the cntractr t have an internatinally recgnized envirnmental management system (EMS) in place e.g. ISO 14001: Specialists shuld cnduct independent audits say every 2 years fr the EMP and EMS. Any material revisins t an EMP t require the prir apprval f Specific guidelines n envirnmental management systems t be develped. 28

31 descriptin 4 Emergency rders Strategic envirnmental management plan (SEMP) Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft As per Explratin Regulatins. The requirement t cnduct reginal SEIAs and deliver reginal SEMPs. the Authrity. Cntractrs shuld, in additin t their reprting bligatins t the Authrity, make available a public annual statement f its envirnmental targets and its perfrmance delivery against envirnmental indicatrs. This is an area that requires further detailed input as t its practical peratin. While the ratinale behind emergency measures is sund, its practical applicatin may be limited. Cnsequently, a fcus n and during the applicatin, reprting, inspectin and review prcesses f cntractr risk management systems and prcesses will be f greater significance, including a cntractr s Emergency respnse and prcedures plan. While this is targeted at the prtectin f the marine envirnment, human health and safety is f fundamental imprtance. Can draw n much existing best practice where relevant, 39 including reprting prtcls. This wuld place an bligatin n the Authrity t cnduct a Strategic envirnmental impact assessment(s) f the Area and t develp Strategic envirnmental management plan(s) (SEMPs) including the develpment f APEI s. The issue f reginal SEMPs fr the Area drew much discussin frm stakehlders and the need t have SEMPs in place prir t cmmercial explitatin. The shuld specify the bjectives f the SEMPs. Secretariat t review cntemprary best practice in the field f marine disaster management and respnding t emergency situatins including the lessns learned. Reginal wrkshps and cperatin t be develped t frmulate reginal SEMPs. 39 Fr example, stakehlders suggested: Internatinal Cnventin n il pllutin preparedness, respnse and cperatin, 1990; IMO Pllutin Incident Respnse Planning Reslutins MEPC.54(32) & MEPC.85(44); EPA (US) Area Cntingency Planning Handbk and EU Directive 2012/18/EU n cntrl f majr-accident hazards invlving dangerus substances. 29

32 descriptin 4 Rights f castal States Envirnmental bnds and perfrmance guarantees Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft The wrding frm the Explratin Regulatins remains relevant. T prvide fr a bnd r financial guarantee where requested by the Authrity. See als cntractr EMP bligatins under Part II abve: a need fr c-peratin and harmnizatin f SEMP and cntractr EMP deliverables. Reference t any likely impacts n castal states shuld be addressed in the EIS, where cnsidered significant. See als Size and lcatin f explitatin area(s) cvered by the plan f wrk abve. The necessity fr a bnd r related perfrmance guarantee requires detailed cnsideratin tgether with the frm that any bnd / guarantee shuld take: cash depsit, parent cmpany guarantee, State guarantee, financial institutin letter f credit and assciated investment grade f any issuer. Cash bnds are preferable. The terms f its release and what can be deducted against the depsit must be established. Fr cmmercial peratrs there is generally a preference fr cmmercial insurance rather than bnds. Imprtance f equality f financial treatment and cmparable financial bligatins acrss the cntractr base. Nt all jurisdictins request a bnd in practice under mining regimes but may make prvisin in their s fr a bnd, particularly t secure any clsure bligatins (restratin / rehabilitatin). In the case f activities in the Area these bligatins may be minimal (save fr any pst clsure mnitring) and a cash bnd r guarantee cnnected with the perfrmance f the EMP may be mre preferable. Nne at this stage. The interactin between cmmercial insurance and bnd mechanisms needs t be investigated tgether with the terms and cnditins, including apprpriate quantum f any bnd. 30

33 descriptin 4 Restratin and rehabilitatin f the marine envirnment Adaptive management apprach Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft A general restratin bligatin where restratin is feasible seems apprpriate. A that better defines adaptive management. T include a general restratin bligatin. 40 Restratin t ccur where directed t d s by the Cuncil. This wuld be based n the Cmmissins recmmendatins that wuld take accunt f the likely effectiveness f techniques based n necessity; technical feasibility; and cst-efficiency n the basis f a cst benefit analysis, where such quantificatin can be reasnably assessed. Restratin will als be impacted by passive rehabilitatin, that is, the ability fr natural recvery t ccur. Restratin & rehabilitatin will require apprpriate legal / scientific definitin in a marine envirnment cntext. All actrs t adpt an adaptive management apprach t explitatin activities. Adaptive management may include:- The permitting f explitatin peratins t prceed n a smaller scale r fr shrter defined perids f time in rder t assess impacts n the envirnment and n human health and safety; The duratin f any apprval f an EMP; The frequency f review perids t be impsed by the Authrity; and Additinal reprting bligatins under an EMP. Nte: this apprach shuld be balanced with the cmmercial (ecnmic) viability f peratins (principles f sustainable develpment). Develpment f cst-benefit analysis mdels needed. Nne at this stage. Adaptive management in cnnectin with explitatin activities in the Area requires further elabratin with interested parties. 40 General cnsensus by stakehlders fr fcus t be n impact minimisatin and mitigatin measures rather than restratin at this time. 31

34 descriptin 4 Seabed sustainability fund Envirnmental liability trust fund Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft T establish a seabed sustainability fund with targeted bjectives. As recmmended by the Seabed Disputes Chamber f the ITLOS. 42 The idea and ratinale f a fund is fr the Authrity t be in a psitin, based n expert recmmendatins, t direct further research e.g. in relatin t marine ecsystems in the Area and t develp institutinal capacities. 41 At the mment the Authrity / Cmmn heritage f mankind are in a Catch 22 with n budget fr large-scale research activities. Research remains a principal bligatin fr cntractrs. The fund culd be financed by way f a levy e.g. USD x per wet / dry tn f re recvered n bard the mining vessel. Cntributins t the fund culd als be cnsidered an element f scial cntributin. The fund culd target the develpment f technlgy, which als presents a revenue stream pprtunity fr the fund (e.g. patent ryalties). Such a funds merit and appeal has yet t be tested but there is a strng ratinale fr such a fund. The ratinale fr such a fund stems frm a ptential envirnmental liability gap. The merit f such a fund was presented in the Stakehlder Survey. Given the suggested Seabed sustainability fund abve, the need fr an additinal fund requires cnsideratin. Hwever, the ratinale fr this fund is different and culd be funded by A wrking paper t be drafted articulating the cncept and bjectives f such a fund fr circulatin t interested parties. Nne at this stage. 41 The cncept f such a fund riginated frm the Stakehlder Survey and is based n the Aggregates Levy Sustainability Fund in the United Kingdm. The ratinale fr such a fund is als supprted by ther stakehlder cmments including the develpment f a nn-fault based mechanism fr research in the deep sea envirnment. 42 Internatinal Tribunal fr the Law f the Sea: Case N. 17: Respnsibilities and bligatins f States spnsring persns and entities with respect t activities in the Area (Request fr Advisry Opinin submitted t the Seabed Disputes Chamber). 32

35 descriptin 4 Human remains and bjects and sites f an archaelgical r histrical nature Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft The wrding f the Explratin Regulatins remains relevant. allcating a prtin f prductin ryalties received by the Authrity. The SIA and actin plan shuld address any specific matters relating t the cultural heritage in the explitatin area(s). Nne at this stage. Part V Cnfidentiality Cnfidentiality f data and infrmatin & Prcedures t ensure cnfidentiality The wrding f the Explratin Regulatins may be relevant. Amendment f the Explratin Regulatin s wrding may be required in the light f any agreed public participatin and review prcesses. The principles f the EITI are als relevant here. There is a call, within the Stakehlder Survey fr a presumptin that all data is public (including cntracts fr explitatin etc.) unless demnstrated therwise. This wuld nt extend, hwever, t cnfidential infrmatin and data. Data flw and participatin / review prcesses will drive any amendment f the cnfidentiality prvisins here. Best practice is t be sught. Cnfidentiality is raised as a high-level issue under Sectin 4 t this paper. Part VI General prcedures Ntice and general prcedures The wrding f the Explratin Regulatins remains relevant. Nne. Nne. 33

36 descriptin 4 Recmmendatins fr the guidance f cntractrs Duty t cperate Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft The wrding f the Explratin Regulatins remains relevant. A general duty n all parties t c-perate and exchange infrmatin is necessary. This prvisin may need t be updated as t the prcesses necessary t draft and adpt such recmmendatins, including the necessity fr expert input and review by interested parties where applicable. A general t stipulate the Authrity s bligatin t cperate with a spnsring State (and vice-versa) where required. Member States shuld equally be under a duty t c-perate and assist the Authrity (and vice-versa). A duty t c-perate with the Authrity is nt nly essential fr jint investigatin and enfrcement f peratinal bligatins, but als f sharing infrmatin fr financial auditing purpses. In practical terms nce an re vessel has left the Area, what cntrl will the Authrity have ver auditing fr say ryalty payments? Access by a Member State t custms and related dcumentatin when the vessel arrives in a Member State prt r shipments t the treatment and prcessing plants will be crucial. Aside frm c-peratin, perhaps an exchange f infrmatin prvisin is applicable here as well defining the types f infrmatin that needs t be shared t allw the Authrity and Member States (and spnsring States) t discharge their duties t the cmmn heritage f mankind. The prcess f issuing recmmendatins by the Cmmissin needs review. Nne but see Sectin 4: Summary f high level issues. Part VII Enfrcement, ffences & penalties Inspectin T include inspectin regime in headline s rather than standard terms f cntract. The general wrding f the Explratin Regulatins (cntract) shuld be retained. Hwever, the inspectin regime requires detailed input, an understanding f any ptential verlaps with spnsring State regimes and its funding and independence. Use f best technlgy fr remte supervisin / inspectin. Develp a wrking paper setting ut a suggested structure and ptins, including funding, fr the peratin f an inspectin regime, taking accunt f 34

37 descriptin 4 Offences & penalties Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft Specific, measurable ffences t be defined tgether with assciated penalties. Need parameters fr: What will be inspected? The qualificatins f inspectrs? Multi-disciplined r specific fcus? The training f inspectrs? Prductin f an inspectr s manual. Cde f Gd Practice n integrity, prfessinalism and transparency (see Paris MOU / Reginal Prt State Cntrl). Optin here fr Member States t nminate their natinals as inspectrs. But fr such natinals nt t be permitted t inspect peratins invlving their natinals r persns under their cntrl where a Member State is say a spnsring State. In a DSM cntext, culd explre pssibilities f cperatin between the Authrity s Mining Inspectrate and Reginal PSC MOUs t cllabrate n gathering and sharing data n cntractrs cmpliance with their bligatins, including mining equipment certificatin and standards (apparently being develped by classificatin sciety ABS and maybe thers), cntingency, safety plans and ther plans relevant t the Mining Inspectrate. (See als Duty t c-perate abve, which will als be f relevance here). A specific list f ffences t be included in the s, as amended by the Cuncil as apprpriate. Parallels can be drawn frm existing regimes. Penalties can either be included in an annex t the s, as amendable by the Cuncil. General characteristics: prprtinality; escalatin prcess (i.e. cmments made in the Stakehlder Survey. Desktp review t be undertaken n existing / cmparable regimes. Interactin with spnsring State ffence and penalty regime t be understd. 35

38 descriptin 4 Specific elements Cmmentary / suggested cntent Actins fr peratinalizatin f draft warning prcess, agreement fr remedial actin; enfrcement ntice; administrative penalty etc.). Penalties ideally against measurable parameters (targets, threshlds) rather than breaches f prcedural bligatins? Part VIII Disputes Settlement f disputes As per Explratin Regulatins. Opprtunity t cnsider lwer level administrative appeals fr the plan f wrk applicatin prcess? That is, a simpler appeal mechanism fr the Cmmissins recmmendatins n the utcme f a plan f wrk r its cnstituent elements. A technical wrking paper needs t be prepared t set ut dispute reslutin ptins under the Cnventin. Part XI Resurces ther than [mineral categry] Resurces ther than [mineral categry] As per Explratin Regulatins. Nne. Nne. Part X Review Review As per Explratin Regulatins. Given an adaptive management apprach, in the early stages f develpment, the explitatin s will benefit frm an annual evaluatin. Nne. 36

39 Annex II Cntract fr explitatin A full analysis f the prpsed standard clauses fr a cntract fr explitatin is nt given belw. Many f the standard clauses including develpment, prductin and perfrmance bligatins will flw frm the headline s. Hwever, there are 5 suggested prvisins belw that require actin and / r cnsideratin. Clause relating t:- Cmmentary Actin Dealings r arrangements A cntractual clause (r ) may be needed t deal with any unfair r unecnmic practices (Annex, Sectin 6 f the Agreement) that ccur in the dwnstream prcess. This needs expert cnsideratin but there culd be agreements, transactins r arrangement that may require the prir cnsent f / ntificatin t the Authrity (Cuncil). This is a specialist area and requires expert input. That said, transparency, exchange f infrmatin and c-peratin will facilitate any apprpriate bligatins n the Cntractr (and Member States under the Agreement). Financial arrangements dwnstream may als impact the financial payment system depending n its final frmulatin, including nn-arm s length sales. Expert input required in cnnectin with the develpment f RRPs (under the Agreement) relating t unfair and / r unecnmic practices (in accrdance with the requirements f the Agreement). See als Undertakings abve. Annual Reprts Guidelines will need t be prepared t determine the frmat and cntent f a cntractr s annual reprt t the Authrity. Subject t specifically agreed cnfidentiality criteria, these shuld be made publicly available (r as a minimum, part theref) under the transparency principle. There als needs t be standardizatin in reprting. A template(s) needs t be devised fr this purpse tgether with an analysis f actual perfrmance against previusly agreed perfrmance indicatrs. Thugh this clause speaks t Annual Reprts, there will be ther specific cntractr reprting bligatins under the s. Guidelines fr the Preparatin f Annual Reprts t be drafted. 37

40 Clause relating t:- Cmmentary Actin Insurance Requirement t maintain insurance in accrdance with apprved plan f wrk. Annual evidence required. Requirement t maintain with financially sund and reputable insurers cnsistent with Gd Mining Industry Practice. This is a specialist area, nt least when cmbined with envirnmental liability insurance. Specific guidance and advice is required fr the Authrity t have a full understanding f prducts available, including deductibles, and their efficacy. Mre prescriptive descriptin f insurance requirements required. See als Envirnmental bnds and perfrmance guarantees abve. Discussins with cntractrs, the insurance industry and ther stakehlders needed here t gain knwledge and understanding f insurance specifics, including limitatins, exceptins and exclusins. Suspensin and terminatin f cntract and penalties Wrding frm Explratin Regulatins t be retained. Hwever, clarificatin needed ver serius persistent and wilful vilatins; 43 and what are cnsidered fundamental terms f the explitatin cntract? Fundamental terms f the cntract can be specifically defined in the cntract. Serius and persistent can be clarified in guidance ntes reflecting a penalty regime. Technical paper t clarify meaning f serius persistent and wilful vilatins based n existing best practice in extractive industries. Revisin The revisin clause in the Explratin Regulatins is f greater significance t explitatin cntracts. The clause is t be taken frm Annex III, Article 19 f the Cnventin. As an immature industry, it will be difficult t anticipate all eventualities. Hwever, sme guidance shuld be cnsidered in terms f understanding the cncepts f inequitable, impracticable and impssible cntained in Annex III, Article 19. Equally, any review perids prvided fr in the s culd ease the peratin f this cntractual prvisin. Transparency f any agreed changes t the terms f a cntract is key; hence a disclsure prvisin shuld be reflected, subject t cnfidentiality prvisin. Culd include suspensin f peratins fr market cnditins (nte: bligatins under an EMP t cntinue). Technical paper t clarify meaning f inequitable, impracticable and impssible referenced in Annex III, Article 19, Cnventin. 43 Annex III, Article 18 f the Cnventin. 38

41 Sectin 3: Summary f the respnse f the Legal and Technical Cmmissin t Stakehlder Survey submissins The Cmmissin acknwledges submissins made t the Stakehlder Survey and takes this pprtunity t thank all thse wh have respnded. The submissins received t date are frm: 20 Members f the Authrity (includes respnses frm statutry bdies, gvernments, ministries and departments); 9 cntractrs; 13 nn-gvernmental rganizatins; 4 scientific and research institutins, 6 private entities and 3 individuals. A synthesis f submissins t the survey has been undertaken by the Secretariat. Submissins nt asked t be kept cnfidential were placed n the website f the Authrity; thers remain cnfidential. The Cmmissin tk accunt f all submissins in its develpment f the draft framewrk fr the Explitatin Regulatins. The Cmmissin is hwever aware that submissins anticipated particularly frm many Member States have nt been received s far. It is hped that this Reprt will prvide an pprtunity and encurage thse that have nt respnded t d s. These respnses are requested t be submitted t the Secretariat nt later than mid-may 2015 s that they can be cnsidered in the further develpment f the framewrk befre the Cuncil meets in July A wider stakehlder base will als permit the Cmmissin t better categrise stakehlder grups and interests. Stakehlders wh respnded t the 2014 Survey are als invited t prvide further cmments n this Reprt n later than mid-may

42 Sectin 4: Summary f high level issues The Cmmissin has cnsidered a number f high level issues relating t bth the strategic apprach t and peratinal develpment f a regulatry framewrk. This Sectin 4 summarises these high level issues. Where applicable, actins flwing frm a discussin f the issues will be reflected in the actin plan in Sectin 5 t this dcument. It is als likely that these issues will emerge int the regulatry framewrk in ne frm r ther. At this stage, cmments are invited as t whether (1) any high level issue is cnsidered as missing frm the list; (2) that the cmmentary apprpriately reflects understanding f the issue and (3) hw these issues culd be incrprated int the framewrk. 40

43 High level issue 1. Infrmatin and data what we knw, what we dn t knw, what we need t knw Cmmentary The Authrity is currently perating in a data deficient envirnment, particularly as regards resurce data and envirnmental data. It is recmmended that the Authrity establish a fit-frpurpse data management strategy as a matter f pririty. This is relevant fr bth the develpment f the regulatry framewrk and n-ging infrmed decisin-making. 2. An interim framewrk The basic draft framewrk at Sectin 2 f this dcument is a starting pint t facilitate cnstructive dialgue with stakehlders and t aid identificatin f further areas f study and expert input. As a cnsequence f 1. abve, the framewrk will remain very much wrk-in-prgress until such time as knwledge gaps can be filled. 3. One explitatin framewrk? 4. Activities in the Area clearly defined bundary pints? 5. The transitin between explratin and explitatin phases It is recmmended at this stage that the cre rules, s and prcedures (RRPs) are set ut in ne ver-arching framewrk. Resurce-specific RRPs can be develped at a later stage. Hwever, an initial fcus will be placed n a regulatry framewrk fr plymetallic ndules. The specific bundary pints fr defining activities in the Area and the specific bligatins and duties f the varius actrs, including that f the Authrity, is unclear. This includes the ptential verlap with the cmpetencies f ther relevant internatinal rganizatins including the Internatinal Maritime Organizatin. A clear picture f bundary pints, including thse relevant t envirnmental, financial and resurce cnservatin matters needs t be drawn. Aside frm the issue f the extensin f cntracts fr explratin, tw further issues are relevant. First, the need t develp a prcess and prcedures fr prir envirnmental impact assessment fr specific activities undertaken under a cntract fr explratin. 44 Secndly, fr reasns f cmmerciality, it is recmmended that the cncept f a prvisinal mining licence 45, while having sme merit, is frgne and that a substantive review perid against pre-determined perfrmance indicatrs is undertaken within a 5-year perid frm the cmmencement date f a cntract fr 44 See IBSA/19/LTC/8. 45 See ISA Technical Study: N. 11 at page 4 fr backgrund. 41

44 High level issue Cmmentary explitatin. 6. Risk assessment, evaluatin and management The develpment f risk assessment and risk management standards and systems (fr envirnmental, ccupatinal health and safety and peratinal risk) is fundamental t the rderly develpment f activities in the Area. It is recmmended that the Authrity gains a better understanding f the risk prfile (hazards and classificatin) f anticipated explitatin peratins thrugh dialgue with cntractrs and ther relevant experts plus ability t draw n existing risk framewrks in related sectrs, including il and gas Time limits and csts The need fr certainty and fairness in the regulatry prcess pints tward clearly prescribed time limits. Time-scales can be benchmarked against best practice mining regimes and be mdified t take accunt f the decisin-making structure f the Authrity. Equally, the peratin f the framewrk must be cst-effective and the sharing f its csts discussed. 8. Cnfidentiality A tensin culd exist between the existing cnfidentiality prvisins cntained in the Explratin Regulatins 47 and the transparency demands f an explitatin framewrk, particularly public access t relevant data and infrmatin and participatin in the envirnmental decisin-making prcess. 48 There is a grwing call in the extractive industries fr greater levels f transparency thrugh infrmatin disclsure 49 and a presumptin that infrmatin relating t cntracts and activities under cntracts is publicly available 50, save fr cnfidential infrmatin. 51 The issue f publicly available infrmatin and meaningful stakehlder participatin in the decisin-making prcesses is a plicy matter fr the Authrity in discussin with interested stakehlders. 46 Other assessment framewrks recmmended by stakehlders includes: Assessment Framewrk fr Scientific Research Invlving Ocean Fertilizatin LC 32/15, annex 6 (IMO parties); Specific Guidelines fr the Assessment f Carbn Dixide fr Dispsal int Sub-seabed Gelgical Frmatin LC32/15 annex See Regulatins 36 and 37 PN Explratin Regulatins. 48 See The UNECE Cnventin n Access t Infrmatin, Public Participatin in Decisin-making and Access t Justice in Envirnmental Matters, Aarhus, 25 June See als IFC Perfrmance Standards n Envirnmental and Scial Sustainability, January Fr example, the Extractive Industries Transparency Initiative. 50 Mdel Mine Develpment Agreement, MMDA 1.0, Internatinal Bar Assciatin. 51 Relating t cmmercial, ecnmic, prperty and business secrets etc. 42

45 High level issue 9. Effective prtectin fr the marine envirnment frm harmful effects 10. Internatinally recgnized standards and their significance in explitatin activities Cmmentary The imprtance f a number f envirnmental prtectin and mitigatin tls under the Cnventin and the prcedural bligatins t deliver the same is vital. It is recgnised that the Authrity and ther actrs shuld adpt an ecsystem-based apprach t envirnmental management in the Area. Additinally, it is recgnised that specific criteria and guidance must be develped fr cncepts such as significant adverse change and vulnerable marine ecsystems ; t this end the Authrity can draw upn existing best practice definitins 52 and wrk already in prgress acrss the stakehlder base. Equally, the develpment f a precautinary risk management framewrk is fundamental t the delivery f prtectin gals. Standard(s) develpment as part f gd mining industry practice 53 is a pre-requisite t the rderly develpment f the industry and a key cnsideratin fr the regulatry framewrk acrss a bradrange f subject matter. The cntent and credibility f industry standards shuld be delivered thrugh cnsensus-building and a multi-stakehlder apprach. Many internatinal standards 54, including thse develped in the il and gas sectr, will be directly applicable t explitatin activities. Indeed many standards have been suggested by stakehlders. 55 Others will require mdificatin and develpment. Standard(s) develpment shuld, primarily, be an industry-driven initiative Fr example, under the UN FAO Internatinal Guidelines fr the Management f Deep-Sea Fisheries in the High Seas and the Cnventin n Bilgical Diversity s criteria fr Eclgically r Bilgically Significant Marine Areas (EBSAs). 53 See Annex III, Article 17(1)(b)(xii) f the Cnventin relating t the adptin and applicatin f mining standards and practices. 54 Als need t cnsider reginal r cuntry standards which may be equivalent t, based n r have a higher level f standard. E.g. EU Regulatin (EC) N 761/2001 Ec-management and audit scheme (EU). 55 Fr example: Cde fr Envirnmental Management f Marine Mining (IMMS); ISO 14001; ISO 9001/9002; ANZI Z10 r OHAS (health and safety management system-related). 56 Ultimately standards will need t be backed-up by the necessary regulatry checks and balances: reprting, ntificatin, inspectin and independent audit bligatins and prcedures. That is, a general questin f hw standards will be enfrced. 43

46 High level issue 11. Spnsring State(s) and the Authrity a clear divisin f duties and respnsibilities? 12. High-grading f mineral depsits 13. Other: existing best practice, learnings, cperatin and infrmatin-sharing Cmmentary It is nt believed that the divisin f duties and respnsibilities is clearly defined between a spnsring State and the Authrity. This relates t matters including enfrcement and mnitring / inspectin, ffence and penalty systems, liability and respnsibility f a cntractr etc. Frm a cntractr s perspective there is the ptential fr a duplicative regulatry burden. This needs t be clarified and duties and respnsibilities mre clearly defined. Equally, this als pints t effective c-peratin between the Authrity and a spnsring State. The issue f high-grading was addressed in the Stakehlder Survey and drew a number f diverging stakehlder pinins including: that a grading plicy shuld be a matter fr cmmercial determinatin; that lw-grade mining culd becme ecnmical ver time as technlgy develps and that high-grading ptentially minimizes the envirnmental ftprint ( untuched lwer grade areas). Other stakehlders made reference t the explitatin f an average balanced grade. The issue f grading plicy needs further cnsideratin with interested parties, including typical breakeven cut-ff grades (ecnmic and technical feasibility) and envirnmental plicy cnsideratins. Other aspects f relevance include the need t draw n existing best practice and nt t reinvent the wheel and t identify any defects and learnings frm the current explratin applicatin and implementatin prcess, including new ways f ding business identified by the Cmmissin. Additinally, the general need fr c-peratin and infrmatin sharing will be fundamental t the effective peratin f the regulatry framewrk. 44

47 Sectin 5: actin plan This draft actin plan is derived frm Sectin 2 f this reprt framewrk fr the Explitatin Regulatins which, when further develped by July, will be reprted t Cuncil fr its cnsideratin. The plan at this stage attempts t identify in a simple way the areas f pririty as fllws (the dates indicated are thse f the anticipated upcming meetings f the Cmmissin): Pririty A: Initiate by July 2015; Pririty B: Initiate by February 2016; Pririty C: N actin anticipated at this time. 45

48 descriptin Actins fr peratinalizatin f draft Pririty Actin (A, B r C) Use f terms and scpe This sectin will evlve as the regulatry framewrk evlves. Definitins shuld reflect internatinally agreed and accepted definitins where pssible. Invlvement f marine jurists and linguists. Frm f applicatins Guidelines fr the Preparatin f a Plan f Wrk fr Explitatin need drafting, including a standard applicatin frm. Develpment / licensing f an nline applicatin management system. Thught t be given t new ways f ding business as highlighted by the Cmmissin in the cntext f explratin and its impact(s) n explitatin applicatins. C A C A Financial and technical capabilities Guidelines fr the Preparatin and Evaluatin f infrmatin relating t Financial capability and Technical capability t be drafted. These can reflect best practice frm natinal regimes and detailed respnses in the Stakehlder Survey. Undertakings A wrking paper requires preparatin by an expert familiar with the internatinal trade issues raised by Annex, Sectin 6(1)(b) f the Agreement and specific RRPs drafted. A C Equity interest in a jint venture arrangement Actin plan fr peratinalizatin f the Enterprise t be develped. 57 C Feasibility study Guidelines fr the Preparatin and Evaluatin (criteria) f a Feasibility study t be drafted. Have any blueprint feasibility studies been develped fr explitatin activities which can be adpted by the Authrity? (T ensure cnsistency and cmparability in applicatins). Envirnmental impact statement EIS template in Technical Study N.10 t be reviewed and updated. Guidelines fr the Preparatin and Evaluatin f an Envirnmental Impact Statement t be drafted. Shuld include simple rating criteria. Needs t be resurce-categry specific. [It is recmmended that the abve be undertaken by an expert and a draft template and guidelines A A 57 The ISA Secretariat is preparing a discussin paper n this matter fr presentatin t the Cmmissin at its July 2015 meeting. 46

49 descriptin Actins fr peratinalizatin f draft Pririty Actin (A, B r C) circulated fr cmment by interested parties]. Envirnmental management plan EMP template needs t be drafted. Guidelines fr the Preparatin and Evaluatin f an Envirnmental management plan t be drafted. Similar t EIS, it is recmmended that the abve be undertaken by an expert and a draft template and guidelines circulated fr cmment by interested parties. Guidelines fr the design and mnitring f Preservatin Reference Znes and Impact Reference Znes t be develped. This may require an expert wrking grup. Pssible multi-stakehlder wrkshp(s) pst develpment f EIS and EMP templates. Scial impact assessment and actin plan Discussin t be advanced n a scial actin plan fr the Area and a call t stakehlders t make cntributins t this discussin. B B Financing plan Template Financing plan t be drafted. C Clsure plan Template clsure plan and Guidelines fr the Preparatin and Implementatin f a Clsure plan (including pst-decmmissining surveys and mnitring) t be drafted. B Size f explitatin area cvered by the plan f wrk There are matters f plicy t be addressed by the Cuncil. Specific guidelines then need t be drawn up t identify the criteria t be applied in assessing the size and lcatin f explitatin area(s). It is likely that additinal expert input is required here and / r initial thughts f cntractrs as t their prpsed explitatin areas and prductin requirements. B Public review f the envirnmental impact statement and envirnmental management plan [and scial impact assessment and clsure plan] A wrking paper needs t be drafted setting ut the public participatin ptins and prcedures available, including independent expert review(s), based n stakehlder submissins and best practice regimes. The paper can then be circulated t stakehlders fr cmment. A Cnsideratin by the Legal and Technical Cmmissin Detailed guidelines will be needed in respect f evaluatin criteria t be used by the Cmmissin. A technical wrking paper needs t be drafted t elabrate n the cncept f sund cmmercial principles (see 1994 Agreement, Annex, Sectin 6(1)(a)). A technical wrking paper is required t elabrate n substantial evidence f risk f serius harm t the marine envirnment in the case f area(s) disapprved fr explitatin. B B B 47

50 descriptin Actins fr peratinalizatin f draft Pririty Actin (A, B r C) Cnsideratin and apprval f plans f wrk fr explitatin by the Cuncil Shuld any specific Cuncil prcedures and criteria be develped here? B Rights f the cntractr Cnsideratin t be given t this by the Secretariat (clarity n rights being granted). B Obligatins f the Authrity Cnsideratin t be given t this by the Secretariat (clarity n Authrity s bligatins). B Legal title t minerals Cnsideratin f the phrase recvery in accrdance with the Cnventin requires a technical wrking paper t be drafted. Duratin f cntracts Further understanding f cntractr develpment and prductin mdels and plans is required here. A balance needs t be established between the cmmercial requirements f cntractrs and the ability f the Authrity t amend terms and cnditins in accrdance with revised RRPs. A wrking paper needs t be develped fr circulatin t stakehlders. Guidelines need t be develped fr the fllwing: Criteria fr cntract duratin resurce specific. Applicatin and evaluatin criteria fr a substantive review. Applicatin and evaluatin criteria fr renewal f an explitatin cntract. Perfrmance requirements Guidelines fr the evaluatin f Prductin perfrmance requirements under a cntract fr explitatin t be drafted. T include key perfrmance criteria and indicatrs. Cuncil t cnsider as a matter f plicy, in discussin with relevant stakehlders, a cut-ff pint fr cmmercial inactivity. B A C Cnservatin f the natural resurces f the Area A plicy in respect f waste management needs t be develped. C Vessels perating in the Area Discussins between the Authrity and the Internatinal Maritime Organizatin t be frmalized. A Prtectin f submarine cables and pipelines Discussins between the Authrity and relevant representative rganizatins frmalized. A 48

51 Actins fr peratinalizatin f draft Pririty Actin (A, B r C) Health and safety T determine additinal internatinal / DSM-specific standards / develpment f best practice Emergency Respnse Plan and Prcedures. Guidelines n the placing f flating installatins and related safety znes in the Area t be develped in cnjunctin with IMO. B Training T establish areas f skills and talent shrtages key t the develpment f the DSM industry. C Peridic review f the implementatin f the plan f wrk fr explitatin Guidelines n Prcedures and Infrmatin Requirements fr Review t be drafted. C Terminatin f spnsrship T clarify pst terminatin bligatins fr a cntractr. C Respnsibility and liability Legal wrkshp required t explre and develp further principles f respnsibility and liability in the Area. C Prtectin and preservatin f the marine envirnment This area requires the frmatin f targeted expert wrkgrups cnsisting f a brad range f stakehlders, including relevant internatinal rganizatins. Specific areas t be identified including RRPs fr dumping. B Envirnmental management Specific guidelines n envirnmental management systems t be develped tgether with reprting requirements. Emergency rders Secretariat t review cntemprary best practice in the field f marine disaster management and respnding t emergency situatins including the lessns learnt. C A Strategic envirnmental management plan Reginal wrkshps and c-peratin t be develped t frmulate reginal SEMPs. B Envirnmental bnds and perfrmance guarantees The interactin between cmmercial insurance and bnd mechanisms needs t be investigated tgether with the terms and cnditins, including apprpriate quantum f any bnd. A Adaptive management apprach Adaptive management in cnnectin with explitatin activities in the Area requires further elabratin with interested parties. C 49

52 Actins fr peratinalizatin f draft Pririty Actin (A, B r C) Seabed sustainability fund A wrking paper t be drafted articulating the cncept and bjectives f such a fund fr circulatin t interested parties. B Cnfidentiality f data and infrmatin & Prcedures t ensure cnfidentiality Recmmendatins fr the guidance f cntractrs Cnfidentiality is raised as a high-level issue under Sectin 4 t this paper. C The prcess f issuing recmmendatins by the Cmmissin needs review. C Inspectin Develp a wrking paper setting ut a suggested structure and ptins, including funding, fr the peratin f an inspectin regime. Offences & penalties Desktp review t be undertaken n existing / cmparable regimes. Interactin with spnsring State ffence and penalty regime t be understd. Settlement f disputes A technical wrking paper needs t be prepared t set ut dispute reslutin ptins under the Cnventin. C B C Annex II Cntract fr explitatin Actins fr peratinalizatin Dealings r arrangements Expert input required in cnnectin with the develpment f RRPs (under the Agreement) relating t unfair and / r unecnmic practices (in accrdance with the requirements f the Agreement). See als Undertakings abve. C Annual Reprts Guidelines fr the Preparatin f Annual Reprts t be drafted. C Insurance Discussins with cntractrs, the insurance industry and ther stakehlders needed here t gain knwledge and understanding f insurance specifics, including limitatins, exceptins and exclusins. See als Envirnmental bnds and perfrmance guarantees abve. A 50

53 Annex II Cntract fr explitatin Actins fr peratinalizatin Suspensin and terminatin f cntract and penalties Technical paper t clarify meaning f serius persistent and wilful vilatins based n existing best practice in extractive industries. C Revisin Technical paper t clarify meaning f inequitable, impracticable and impssible referenced in Annex III, Article 19 Cnventin. C High level issues Actins fr peratinalizatin Pririty Actin (A, B r C) Infrmatin and data what we knw, what we dn t knw, what we need t knw It is recmmended that the Authrity establish a fit-fr-purpse data management strategy as a matter f pririty. A Risk assessment, evaluatin and management It is recmmended that the Authrity gains a better understanding f the risk prfile f prpsed explitatin peratins thrugh dialgue with cntractrs (identificatin f hazards and ptential incident categries). A Effective prtectin fr the marine envirnment frm harmful effects Specific criteria and guidance must be develped fr cncepts such as significant adverse change and vulnerable marine ecsystems. Develpment f a precautinary risk management framewrk (see Risk assessment, evaluatin and management abve). B / C Internatinally recgnized standards and their significance in explitatin activities Standard(s) develpment shuld, primarily, be an industry-driven initiative. Authrity t engage with relevant stakehlders t initiate a standard develpment prcess and framewrk. B Spnsring State(s) and the Authrity a clear divisin f duties and respnsibilities? Authrity t initiate dialgue with spnsring States t discuss way frward. Develp a matrix setting ut the divisin f duties and respnsibilities. B High-grading f mineral depsits The issue f grading plicy needs further cnsideratin with interested parties, including typical breakeven cut-ff grades and envirnmental plicy cnsideratins. B 51

54 Sectin 6: Making a submissin Structure f submissin Please wuld yu kindly structure yur submissin as fllws: An pening paragraph intrducing yu and / r yur rganizatin and yur direct and / r indirect interest in activities in the Area (Please nte fr thse stakehlders wh respnded t the Authrity s initial Stakehlder Survey, this is nt required). Yur cmments and / r suggestins referenced t the relevant part f this Reprt. Any ther general and / r specific cmments yu wish t make n the develpment f the regulatry framewrk. A list f any supprting dcuments accmpanying yur submissin, tgether with website links where applicable. Yur express cnsent (see belw) t make yur persnal details and submissin publicly available (nte: the Authrity may als reference yur cmments against specific Sectins and parts f the framewrk fr ease f reading by all stakehlders). Yur interest in future cntact by the Authrity and / r being part f a stakehlder grup (except fr thse stakehlders wh have already expressed such an interest). Yur cntact details clearly identified. Clsing date The clsing date fr submissins is Friday, 15th May 2015 at 1800hr (EST). Submissin details Submissins shuld be sent by pst r electrnically as fllws: Reprt t Stakehlders (ISBA/Cns/2015/1) Internatinal Seabed Authrity Prt Ryal Street Kingstn Jamaica 52

55 (frmat: PDF r Micrsft Wrd dcument). Online submissin publicatin & cnfidentiality In the interests f transparency and t prmte and encurage further discussin, the Authrity may publish all submissins n a dedicated area f its website athttp:// Hwever, the Authrity requires yur express cnsent and apprval t make submissins publicly available (i) including yur name and rganizatin as apprpriate r (ii) t make yur cmments withut disclsing any f yur persnal details. Please include such express cnsent in yur submissin where applicable. The default psitin is that yur cmments and persnal details will be kept cnfidential withut attributin. Future engagement & privacy The Authrity will retain yur persnal cntact details securely and in-cnfidence (except fr any disclsure cnsented t abve) with a view t cntacting yu slely in respect f future surveys, cnsultatins and engagement. Shuld yu n lnger wish the Authrity t stre yur persnal details, please advise us by sending a request t remve yur cntact details t the address abve. Annymus submissins Please nte any submissins made annymusly will be disregarded fr the purpses f this Reprt. 53

56 54

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