[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4363 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 4363
To establish a regulatory system and research program for sustainable
offshore aquaculture in the United States exclusive economic zone, and
for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
December 16, 2009
Mrs. Capps introduced the following bill; which was referred to the
Committee on Natural Resources
_______________________________________________________________________
A BILL
To establish a regulatory system and research program for sustainable
offshore aquaculture in the United States exclusive economic zone, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``National
Sustainable Offshore Aquaculture Act of 2009''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Purposes.
Sec. 3. NOAA Office; Advisory Board.
Sec. 4. Regional programmatic environmental impact statements.
Sec. 5. Offshore aquaculture permitting.
Sec. 6. Fees.
Sec. 7. Sustainable offshore aquaculture research program.
Sec. 8. Compatibility with other uses; State input.
Sec. 9. Relationship to other laws.
Sec. 10. Unlawful activities.
Sec. 11. Enforcement.
Sec. 12. Natural resources damages assessment and liability.
Sec. 13. Encouraging worldwide adherence to the aquaculture provisions
of the Code of Conduct for Responsible
Fisheries.
Sec. 14. Definitions.
SEC. 2. PURPOSES.
The purposes of this Act are the following:
(1) To establish a regulatory system for sustainable
offshore aquaculture in the United States exclusive economic
zone.
(2) To authorize the Secretary of Commerce to determine
appropriate locations for, permit, regulate, monitor, and
enforce offshore aquaculture in the exclusive economic zone.
(3) To require the Secretary of Commerce to issue
regulations for permitting of offshore aquaculture in the
exclusive economic zone that prevent impacts on the marine
ecosystem and fisheries or minimize such impacts to the extent
they cannot be avoided.
(4) To establish a research program to guide the
precautionary development of offshore aquaculture in the
exclusive economic zone that ensures ecological sustainability
and compatibility with healthy, functional ecosystems.
SEC. 3. NOAA OFFICE; ADVISORY BOARD.
(a) NOAA Office.--
(1) In general.--The Secretary shall establish an Office of
Sustainable Offshore Aquaculture within the National Marine
Fisheries Service at National Oceanic and Atmospheric
Administration headquarters, and satellite offices of such
office in each of the National Oceanic and Atmospheric
Administration's regional fisheries offices.
(2) Duties.--The Office shall be responsible for
implementing this Act, and shall--
(A) conduct the regional programmatic environmental
impact studies under section 4;
(B) implement the permitting and regulatory program
under section 5;
(C) administer the research program established
under section 7;
(D) coordinate aquaculture and related issues
within the National Oceanic and Atmospheric
Administration;
(E) perform outreach, education, and training;
(F) provide opportunities for consultation among
owners and operators of offshore aquaculture
facilities, Regional Fishery Management Councils,
nonprofit conservation organizations, and other
interested stakeholders;
(G) organize through each regional office a network
of regional experts, in coordination with relevant
organizations such as the National Sea Grant College
program and other academic institutions, to provide
technical expertise on aquaculture;
(H) maintain the database required by paragraph
(3); and
(I) perform such other functions as are necessary
to carry out this Act.
(3) Database.--The Secretary shall establish and maintain
within the Office an aquaculture database, which shall include
information on research, technologies, monitoring techniques,
best management practices, and recommendations of the
Sustainable Offshore Aquaculture Advisory Board established
under subsection (b). The Secretary shall make the database
available to the general public in a manner that protects
proprietary information of owners and operators of offshore
aquaculture facilities.
(b) Advisory Board.--
(1) In general.--The Office shall establish a Sustainable
Offshore Aquaculture Advisory Board, the members of which shall
be appointed by the Secretary.
(2) Structure.--The membership of the Advisory Board shall
include, at a minimum, representatives from the National Marine
Fisheries Service, the commercial and recreational fishing
industries, State or local governments, the Coast Guard,
nonprofit conservation organizations, members of academia with
scientific or technical expertise in ocean and coastal matters,
and representatives of the aquaculture industry.
(3) Appointment and terms.--
(A) In general.--Members of the Advisory Board
shall be appointed by the Secretary for a term of 2
years.
(B) Vacancies.--Whenever a vacancy occurs, the
Secretary shall appoint an individual representing the
same interests or affiliation represented by the
individual's predecessor to fill that vacancy for the
remainder of the applicable term.
(4) Chairperson.--The Advisory Board shall have a
chairperson, who shall be elected by the Advisory Board from
among its members. The chairperson shall serve for a 2-year
term.
(5) Duties.--The Advisory Board shall--
(A) meet at least once every six months; and
(B) provide advice to the Secretary on all aspects
of offshore aquaculture, including developing
technologies, emerging risks, issues unique to each
region, and priorities for research authorized under
section 7.
(6) Continuing existence.--Section 14(a)(2) of the Federal
Advisory Committee Act (5 U.S.C. App.) shall not apply to the
Advisory Board.
SEC. 4. REGIONAL PROGRAMMATIC ENVIRONMENTAL IMPACT STATEMENTS.
(a) In General.--The Secretary shall issue for each region
described in subsection (b) a regional programmatic environmental
impact statement under section 102 of the National Environmental Policy
Act of 1969 (42 U.S.C. 4332) regarding permitting of offshore
aquaculture under this Act.
(b) Regions Described.--The regions referred to in subsection (a)
are each of the geographic regions for which a Regional Fishery
Management Council is established under section 302(a) of the Magnuson-
Stevens Fishery Conservation and Management Act (16 U.S.C. 1852(a)).
(c) Identification of Areas.--The Secretary shall include in the
statement under subsection (a) for a region identification of--
(1) areas of the region that are not appropriate locations
for the conduct of offshore aquaculture; and
(2) areas of the region that may be appropriate locations
for the conduct of offshore aquaculture.
(d) Matters To Be Considered.--Each regional programmatic
environmental impact statement shall include consideration of the
following:
(1) Appropriate areas for siting offshore aquaculture
facilities and operations to avoid adverse impacts, and to
minimize any unavoidable impacts on user groups, public trust
values, and the marine environment, including effects on
commercial and recreational fishing and other important ocean
uses.
(2) Impacts on marine ecosystems, sensitive ocean and
coastal habitats, and other plant and animal species,
including--
(A) the impacts of escaped fish on wild fish
populations;
(B) the impacts of interactions with marine
mammals, marine wildlife, and birds;
(C) the impacts of the use of chemical and
biological products, pollutants, and nutrient wastes on
the marine environment; and
(D) effects of removal of forage fish for feed,
fishmeal, and fish oil on marine ecosystems.
(3) Cumulative effects of a number of offshore aquaculture
facilities on the ability of the marine environment to maintain
preexisting flora and fauna.
(4) Design of offshore aquaculture facilities and
operations to avoid adverse environmental impacts, and to
minimize any unavoidable impacts.
(e) Review and Revision.--The Administrator shall review, revise,
and publish in the Federal Register each regional programmatic
environmental impact statement under this section every 10 years,
including by--
(1) reviewing and revising, as appropriate, identifications
of areas under subsection (c); and
(2) reassessing the analysis of each such identification,
taking into account changes in environmental conditions and
information that has become available since the date of such
identification.
(f) Programmatic EIS Required.--No permit may be issued under
section 5 for an offshore aquaculture facility before the date of the
issuance of all programmatic environmental impact statements under this
section.
(g) Environmental Review.--In addition to the requirement to issue
regional programmatic environmental impact statements under this
section, a separate environmental review under section 102 of the
National Environmental Policy Act of 1969 (42 U.S.C. 4332) shall be
conducted for issuing permits under this Act.
SEC. 5. OFFSHORE AQUACULTURE PERMITTING.
(a) Permitting Requirement.--
(1) In general.--No person may engage in offshore
aquaculture except as authorized by a permit issued under this
Act.
(2) Permitting authority.--The Secretary may issue permits
in accordance with this Act authorizing a person to engage in
offshore aquaculture.
(3) Existing authorizations not effective.--No permit or
other authorization issued under any other Federal law before
the date of the enactment of this Act shall be construed as
authorizing activity for which a permit is required by this
Act.
(b) Regulations.--
(1) In general.--The Secretary shall issue regulations that
govern the issuance of permits under this Act and the conduct
of activities under such permits by not later than 180 days
after the regional programmatic environmental impact statements
required under section 4 are completed.
(2) Priority of method.--The regulations shall--
(A) to the extent feasible, establish numerical
standards for environmental performance under such
permits;
(B) to the extent such numerical standards are not
feasible, establish narrative standards for such
performance; and
(C) to the extent such numerical standards and
narrative standards are not feasible, require
management practices, including implementation of best
management practices for such performance.
(3) Best scientific information available.--The regulations
shall be based on the best scientific information available.
(4) Review of regulations.--The Secretary shall review and
revise the regulations under this section at the same time the
Secretary conducts reviews of regional programmatic
environmental impact statements under section 4(e).
(c) Application.--The applicant for a permit under this section
shall submit to the Secretary an application--
(1) specifying--
(A) the proposed location to be developed under the
permit, including--
(i) size;
(ii) depth;
(iii) water conditions, including currents;
(iv) substrate;
(v) preliminary habitat and ecological
community assessment data;
(vi) distribution and composition of
species;
(vii) proximity to other offshore
aquaculture facilities; and
(viii) proximity to other uses;
(B) the proposed operation to be developed under
the permit;
(C) the marine species to be propagated or reared,
or both; and
(D) design, construction, and operational
information as may be specified in the regulations
under this section;
(2) demonstrating that the location is sufficient to avoid
or minimize adverse effects on resources and other resource
users; and
(3) containing such other information as may be required by
the Secretary.
(d) Eligibility.--A person shall not be eligible to apply for a
permit under this section unless the person is an individual who is a
resident of the United States or a corporation, partnership, or other
entity organized and existing under the laws of a State or the United
States.
(e) Public Notice and Comment.--The Secretary shall--
(1) promptly publish public notice of each application
received by the Secretary for a permit under this section;
(2) determine whether a permit application is complete
within 30 days of receipt; and
(3) provide a period of at least 90 days after determining
that the application is complete for the submission of public
comment on the application.
(f) Consideration by Secretary.--
(1) In general.--Within 180 days after determining that a
permit application under this section is complete and the
applicant has satisfied all applicable statutory and regulatory
requirements, the Secretary shall issue or deny the permit. If
the Secretary is unable to issue or deny a permit within this
time period, the Secretary shall provide written notice to the
applicant indicating the reasons for the delay and establishing
a reasonable timeline for issuing or denying the permit.
(2) Consultation not affected.--Paragraph (1) shall not be
construed to affect the application of any requirement under
section 7 of the Endangered Species Act of 1973 (16 U.S.C.
1536) or any other Federal law.
(g) Permit Terms.--
(1) Effective period; renewal.--A permit under this
section--
(A) shall be effective for an initial period of 10
years; and
(B) may be renewed by the Secretary for subsequent
10-year periods.
(2) Permittee's right of first refusal.--The Secretary may
not issue a permit under this section to a person for an area
that is subject to another permit under this section held by
another person, unless--
(A) the other person elects not to renew the other
permit; or
(B) the other permit expires or is terminated by
its terms.
(3) Transferability.--A permit under this section shall be
transferable to any person who is otherwise eligible for the
permit.
(h) Prioritization of Permits.--The Secretary--
(1) shall give priority to issuance of permits for
activities to be conducted in an area that has been identified
in a statement under section 4(c)(2) as an area that may be an
appropriate location for the conduct of offshore aquaculture;
(2) shall give priority to issuance of permits for
activities to be conducted using technologies and practices
that will substantially exceed compliance with the permit terms
and conditions required under subsection (j); and
(3) may waive some or all of the requirements to pay a fee
under section 6 with respect to a permit required to be given
priority under paragraph (1) or (2).
(i) Annual Review and Reporting.--
(1) In general.--The Secretary shall conduct--
(A) an annual review of compliance with permits
under this Act by each permittee; and
(B) announced and unannounced site inspections at
locations of offshore aquaculture facilities operated
under such permits.
(2) Reporting requirements.--With respect to activities
under a permit under this section, the permittee shall report
annually to the Secretary--
(A) comprehensive data regarding escape events,
including estimates of stocked and harvested fish and
mortalities;
(B) nutrient-loading data and community structure
data to assess the impact of offshore aquaculture on
the water column and the benthos;
(C) prevalence and extent of disease and parasites;
(D) the use and amounts of antibiotics, pesticides,
prescription drugs and nonprescription drugs, and other
chemical treatments;
(E) sources of fish feed, including invoices,
receipts, or bills of lading showing source of wild
fish stock; and
(F) other information, as required by the
Secretary.
(3) Availability of information.--The Secretary shall make
all data reported by permittees publically available, subject
to reasonable restrictions to protect proprietary information
of owners and operators of offshore aquaculture facilities.
(4) Assessment of reported data.--The Secretary shall
conduct an independent assessment of all data reported by
permittees to ensure permit compliance and identify potential
cumulative impacts of offshore aquaculture.
(j) Permit Terms and Conditions.--The Secretary shall include in
the terms and conditions of each permit under this Act the following:
(1) Broodstock management and fish escapes.--
(A) Offshore aquaculture under such permit shall be
limited to species of a genotype native to the
geographic region of the offshore aquaculture facility
or operations authorized by the permit.
(B) Species of special concern or those of
protected status under the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.) shall not be cultured for
growout and harvest.
(C) Genetically modified species shall not be
cultured.
(D) Native species shall be cultured in a manner
that ensures fish escapes will not harm the genetics of
local wild fish. Stocked fish shall be no further than
two generations from the relevant wild stock, and shall
not have been exposed to intentional selective
breeding.
(E) All cultured fish shall be marked, tagged, or
otherwise identified as belonging to the permittee in a
manner determined appropriate by the Secretary, unless
the Secretary determines that identifying cultured fish
is unnecessary for protecting wild fish stocks, the
marine environment, or other ocean uses.
(F) All facilities and operations shall be
designed, operated, and shown to be effective at
preventing the escape of cultured fish into the marine
environment and withstanding severe weather conditions
and marine accidents. The permittee shall maintain
records on all escapes. In the event of escapement, the
number of escaped fish and the circumstances
surrounding the incident shall be reported immediately
to the Secretary.
(G) Wild-caught fish shall not be contained in any
research project under section 7 or offshore
aquaculture facility permitted under this Act for the
purposes of growing such fish to market size or mass,
or with the intention of selling such fish.
(2) Disease and pathogen prevention.--The Secretary shall--
(A) require offshore aquaculture facilities to be
designed, located, and operated to prevent the
incubation and spread of disease and pathogens and
ecosystem impacts from disease and pathogen
introduction;
(B) prohibit the use, including the prophylactic
use, of antibiotics, pesticides, prescription and
nonprescription drugs, or other chemical treatments;
except that--
(i) such use may be allowed as necessary to
treat a diagnosed disease; and
(ii) the use of vaccines may be allowed;
(C) require that if use of antibiotics, pesticides,
prescription or nonprescription drugs, or other
chemical treatments is necessary to treat a diagnosed
disease and multiple options for treatment of such
disease exist--
(i) the option with the least environmental
impact shall be used; and
(ii) such use shall be minimized to the
maximum extent practicable;
(D) require that the use of antifouling paints on
all offshore aquaculture facilities, vessels, and in-
water structures be minimized to the maximum extent
practicable; and
(E) prohibit the use of any antibiotic, pesticide,
prescription or nonprescription drug, or other chemical
treatment for marine aquaculture except after
consultation with the Commissioner of the Food and Drug
Administration.
(3) Habitat and ecosystem impacts.--The Secretary--
(A) shall establish appropriate numerical
limitations of nutrient inputs into the marine
environment from offshore aquaculture facilities--
(i) in consultation with the Administrator
of the Environmental Protection Agency;
(ii) at a local or regional level as
necessary to protect the environment; and
(iii) taking into account cumulative and
secondary impacts of such inputs at the local
and regional level from the expansion of
offshore aquaculture; and
(B) shall require each permittee under this Act to
prevent discharges of pollutants into ocean waters to
the maximum extent practicable.
(4) Interactions with and impacts on marine wildlife.--The
Secretary shall--
(A) require each permittee under this Act to
develop a comprehensive, integrated predator management
plan that--
(i) employs nonlethal deterrents as a
primary course of action; and
(ii) contains measures to prevent
entanglement, migration disruption, and change
in predator behavior, so as to not unreasonably
disrupt wildlife or their use of critical
marine habitat; and
(B) prohibit permittees under this Act--
(i) from using underwater acoustic
deterrent devices of any kind; and
(ii) from intentionally killing or
seriously injuring marine mammals and other
predators of cultured fish, except if human
safety is immediately threatened.
(5) Use of marine resources for feeds.--The Secretary
shall--
(A) prohibit the use under permits under this Act
of wild fish as feed ingredients for offshore
aquaculture unless--
(i) they are sourced from populations with
ecosystem-based management measures in place;
and
(ii) they are sourced from populations
whose biomass is at or above maximum
sustainable yield;
(B) require that use under such permits of fishmeal
and fish oil derived from forage fisheries be
minimized;
(C) require that alternatives to fishmeal and fish
oil, or fishmeal and fish oil made from fish byproducts
be utilized under such permits to the maximum extent
practicable; and
(D) issue guidance that incorporates the results of
the joint NOAA-USDA Alternative Feeds Initiative and
other research efforts investigating alternative feed
ingredients.
(6) Interactions with fisheries.--The Secretary shall
minimize displacement of commercial and recreational fisherman
and economic harm to fishing communities resulting from
activities under permits under this Act.
(7) Siting.--The Secretary shall prohibit siting of an
offshore aquaculture facility under a permit under this Act--
(A) in sensitive habitat, including any marine
protected area, marine reserve, Habitat Area of
Particular Concern, Special Management Zone, or
National Marine Sanctuary;
(B) in an area that is identified in a regional
programmatic environmental impact statement under
section 4(c)(1) as an area that is not an appropriate
location for the conduct of offshore aquaculture; or
(C) on or attached to any portion of an oil or gas
platform, including one that is no longer in service.
(k) Limited Right.--The Secretary shall not issue any permit under
this Act that constitutes a property right for which compensation could
be required under the Fifth Amendment to the Constitution.
(l) Limitation in the Public Interest.--The Secretary shall not
issue a permit under this Act for an offshore aquaculture project if
the Secretary determines that denial of a permit for the project is in
the public interest.
SEC. 6. FEES.
(a) Permit Fees.--
(1) In general.--The Secretary shall establish, assess, and
collect application fees and annual fees with respect to
permits under this Act that are sufficient to pay the costs of
issuance, monitoring, and enforcement of such permits.
(2) Deposit and use.--Such fees shall be deposited as
offsetting collections in the Operations, Research, and
Facilities account of the Department of Commerce.
(b) Resource Rental Fees.--
(1) In general.--The Secretary shall establish, assess, and
collect resource rental fees to recover from permittees under
this Act a reasonable portion of the value of the use under the
permits of ocean resources held in public trust.
(2) Deposit and use.--Amounts received by the United States
as fees under this subsection--
(A) shall be deposited into a separate account in
the Treasury, which shall be known as the Offshore
Aquaculture Development and Resource Trust Fund; and
(B) shall be available to the Secretary, subject to
the availability of appropriations and review by the
Offshore Aquaculture Advisory Board established under
section 3(b), to enhance the research program under
section 7.
(c) Financial Guarantee.--The Secretary shall require each
permittee under this Act to post a bond or other form of financial
guarantee, in an amount to be determined by the Secretary to be
sufficient to cover any unpaid fees, the cost of removing an offshore
aquaculture facility at the expiration or termination of offshore
aquaculture operations, and other financial risks as identified by the
Secretary.
SEC. 7. SUSTAINABLE OFFSHORE AQUACULTURE RESEARCH PROGRAM.
(a) Purpose.--The purpose of this section is to establish a
research program to--
(1) inform how offshore aquaculture permitting and
regulation can adopt a precautionary approach to industry
expansion to ensure ecological sustainability and compatibility
with healthy, functional ecosystems and fisheries; and
(2) develop cost-effective solutions to environmental and
socioeconomic impacts of offshore aquaculture.
(b) Establishment of Program.--The Secretary, in consultation with
other Federal agencies, coastal States, Regional Fishery Management
Councils, academic institutions, and other interested stakeholders,
shall establish and conduct a research program to guide the sustainable
development of offshore aquaculture.
(c) Topics of Program.--The Secretary, through the research
program, shall--
(1) identify environmental factors, aquaculture
technologies, and practices that address the permit terms and
conditions required under section 5(j);
(2) assess and mitigate the cumulative impacts of multiple
offshore aquaculture facilities;
(3) analyze potential socioeconomic impacts of offshore
aquaculture on fisheries and communities that are dependent on
such fisheries;
(4) evaluate financial, public policy, and market
incentives for sustainable development of offshore aquaculture;
and
(5) conduct or support research on other topics as
considered appropriate by the Secretary to achieve the purpose
of this section.
(d) Grant Program.--
(1) In general.--The Secretary, subject to the availability
of appropriations, shall establish a competitive, peer-reviewed
grant program to support research related to the topics of the
program under subsection (c).
(2) Eligibility.--The Secretary, in consultation with the
Offshore Aquaculture Advisory Board established under section
3, shall establish criteria for determining persons who are
eligible for grants under this section.
(e) Transparency; Use of Results.--The Secretary, in consultation
with the Advisory Board, shall--
(1) issue rules for the grant program under subsection (d)
that enable the public to understand the administration of the
grant program, including the process for application,
submission of materials, and awarding of grants;
(2) utilize and regularly incorporate the information
gathered from the research program to guide Federal permitting
and rulemaking decisions relating to offshore aquaculture, with
an adaptive management approach; and
(3) make the findings of the research and development
program available to the public.
(f) Coordination With Other Federal Programs.--The Secretary shall
coordinate the research program with other Federal programs that
provide grant funding for purposes similar to that described in this
section, such as grants administered by the National Institute of
Science and Technology and its Advanced Technology Program.
(g) Permit Modification.--The Secretary shall revise permits to
accommodate research conducted on or near offshore aquaculture
facilities permitted under section 5.
SEC. 8. COMPATIBILITY WITH OTHER USES; STATE INPUT.
(a) Consultation.--The Secretary shall consult, as appropriate,
with other Federal agencies and coastal States to ensure that offshore
aquaculture for which permits are issued under this Act is compatible
with the use of the exclusive economic zone for navigation, resource
protection, recreation, fisheries, national defense (including military
readiness), mineral exploration and development, and other activities.
(b) Permits for Regulated Species and Areas.--
(1) In general.--The Secretary may not issue a permit under
this Act authorizing a person to propagate or rear a species of
a fishery for which there is in effect a fishery management
plan under the Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C. 1801 et seq.), or to propagate or
rear any species in an area that is within the jurisdiction of
a Regional Fishery Management Council, unless all Regional
Fishery Management Councils that have authority under such Act
to issue such a plan for that fishery or that have jurisdiction
over that area, respectively, have recommended approval of
issuance of the permit.
(2) Ensuring fishing access.--The Secretary, in
consultation with Regional Fishery Management Councils, shall
ensure that offshore aquaculture permits under this Act do not
interfere with access to commercial and recreational fish
stocks.
(c) State Input.--
(1) Notice to state.--The Secretary--
(A) shall promptly provide to a coastal State
notice of the receipt by the Secretary of any
application for a permit under this Act for any new
offshore aquaculture facility to be located within 12
miles of the coastline of that coastal State; and
(B) shall not issue such permit before the end of
the 90-day period beginning on the date the Secretary
provides such notice.
(2) State opt-out.--
(A) Submission of list.--A coastal State may submit
to the Secretary a list of locations, species, or
categories of species (such as finfish or shellfish)
for which the coastal State opposes the conduct of
offshore aquaculture, by no later than 180 days after
the regional programmatic environmental impact
statements under section 4 are published.
(B) Subsequent submission or revision.--A coastal
State may submit a list under subparagraph (A), or
revise or revoke such a list previously submitted,
within 90 days after the review of a regional
environmental impact statement under section 4(e) is
published.
(C) Prohibition on permits.--The Secretary may not
issue or renew any permit under this Act authorizing
offshore aquaculture in any location, or of any
species, or category of species, that is included in a
list submitted under subparagraph (A) by the nearest
coastal State with respect to that facility.
(d) Integration With Other Federal Planning.--The Secretary shall
integrate the permitting of offshore aquaculture under this Act with
other Federal regional marine spatial planning that has as its purpose
ecosystem-based management of United States marine waters.
SEC. 9. RELATIONSHIP TO OTHER LAWS.
(a) Magnuson-Stevens Fishery Conservation and Management Act.--
Notwithstanding the definition of ``fishing'' in section 3(16) of the
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C.
1802(16)), the conduct of offshore aquaculture in accordance with
permits issued under this Act shall not be considered fishing for
purposes of that Act, and no Regional Fishery Management Council may
issue any permit authorizing offshore aquaculture. The Secretary shall
ensure that offshore aquaculture does not interfere with conservation
and management measures promulgated under the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1801 et seq.).
(b) Actions Affecting the Outer Continental Shelf.--
(1) Concurrence of secretary of the interior required.--The
Secretary must obtain the concurrence of the Secretary of the
Interior before issuing any permit under this Act for offshore
aquaculture facilities located--
(A) on any lease, right-of-use and easements, or
right-of-way authorized or permitted under the Outer
Continental Shelf Lands Act (43 U.S.C. 1331 et seq.);
or
(B) within 1 mile of any other facility for which a
permit has been issued, or for which a plan has been
approved, under that Act.
(2) Prior consent required.--The Secretary may not issue
any permit under this Act authorizing offshore aquaculture on
any lease, right-of use and easements, or right-of-way referred
to in paragraph (1)(A) without the prior consent of the lessee,
its designated operator, and the owner of the facility
concerned.
(3) Review of lease, etc., compliance.--The Secretary of
the Interior shall review and approve any agreement between a
lessee, designated operator, and owner of a facility described
in paragraph (1) and a prospective offshore aquaculture
facility operator to ensure that it is consistent with the
Federal lease terms, Department of the Interior regulations,
and the Secretary of the Interior's role in the protection of
the marine environment, property, or human life or health. An
agreement under this subsection shall be part of the
information reviewed pursuant to the Coastal Zone Management
Act of 1972 review process described in paragraph (4) and shall
not be subject to a separate review under the Coastal Zone
Management Act of 1972 (16 U.S.C. 1451 et seq.).
(4) Coordinated coastal zone management act of 1972
review.--
(A) Review if consistency determination required
for permit applications.--If the applicant for a permit
under this Act for an offshore aquaculture facility
that will utilize a facility described in paragraph (1)
is required to submit for its offshore aquaculture
permit application under this Act a consistency
certification under section 307(c)(3)(A) of the Coastal
Zone Management Act of 1972 (16 U.S.C. 1456(c)(3)(A))
to a coastal State, the coastal State's review under
such Act and corresponding Federal regulations shall
also include any modification to a lessee's approved
plan or other document for which a consistency
certification would otherwise be required under
applicable Federal regulations, including changes to
its plan for decommissioning any facilities, resulting
from or necessary for the issuance of the permit under
this Act, if information related to such modifications
or changes is received by the coastal State at the time
the coastal State receives the offshore aquaculture
permit applicant's consistency certification. If the
information related to such modifications or changes is
received by the coastal State at the time the coastal
State receives the offshore aquaculture permit
applicant's consistency certification, a lessee is not
required to submit a separate consistency certification
for any such modification or change under section
307(c)(3)(B) of the Coastal Zone Management Act of 1972
(16 U.S.C. 1456(c)(3)(B)) and the coastal State's
concurrence or objection, or presumed concurrence,
under section 307(c)(3)(A) of the Coastal Zone
Management Act of 1972 (16 U.S.C. 1456(c)(3)(A)) in a
consistency determination for the offshore aquaculture
permit, shall apply to both the offshore aquaculture
permit and to any related modifications or changes to a
lessee's plan approved under the Outer Continental
Shelf Lands Act.
(B) Review if state is not authorized to review
permit application.--If a coastal State is not
authorized by section 307(c)(3)(A) of the Coastal Zone
Management Act (16 U.S.C. 1456(c)(3)(A)) and
corresponding Federal regulations to review an offshore
aquaculture permit application submitted under this
Act, then any modifications or changes to a lessee's
approved plan or other document requiring approval from
the Department of the Interior, shall be subject to
coastal State review pursuant to the requirements of
section 307(c)(3)(B) of the Coastal Zone Management Act
of 1972 (16 U.S.C. 1456(c)(3)(B)), if a consistency
certification for those modifications or changes is
required under applicable Federal regulations.
(c) Coastal Zone Management Act of 1972.--
(1) In general.--This Act shall not affect the application
of the Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et
seq.), and regulations promulgated thereunder, with respect to
offshore aquaculture.
(2) Assistance to states.--The Secretary shall provide
technical and, subject to the availability of appropriations,
financial assistance to States to review and, if necessary,
revise their management plans under that Act to address
offshore aquaculture in State and Federal marine waters.
(d) Reservation of Authorities, etc.--Nothing in this Act shall be
construed to displace, supersede, or limit the jurisdiction,
responsibilities, or authorities of any Federal or State agency, or
Indian tribe or Alaska Native organization, under any Federal law or
treaty.
SEC. 10. UNLAWFUL ACTIVITIES.
It is unlawful for any person--
(1) to engage in offshore aquaculture, except in accordance
with this Act and valid permits issued under this Act;
(2) to falsify any information required to be reported,
communicated, or recorded pursuant to this Act or any
regulation or permit issued under this Act, or to fail to
submit in a timely fashion any required information, or to fail
to report to the Secretary immediately any change in
circumstances that has the effect of rendering any such
information false, incomplete, or misleading;
(3) to refuse to permit an authorized officer to conduct
any lawful boarding, lawful search, or lawful inspection in
connection with the enforcement of this Act or any regulation
or permit issued under this Act;
(4) to forcibly assault, resist, oppose, impede,
intimidate, or interfere with an authorized officer in the
conduct of any boarding, search, or inspection in connection
with the enforcement of this Act or any regulation or permit
issued under this Act;
(5) to resist a lawful arrest or detention for any act
prohibited by this section;
(6) to interfere with, delay, or prevent, by any means, the
apprehension, arrest, or detection of another person, knowing
that such person has committed any act prohibited by this
section;
(7) upon the expiration or termination of any offshore
aquaculture permit under this Act for any reason, to fail to
remove all structures, gear, and other property from the site,
or take other measures, as prescribed by the Secretary, to
restore the site;
(8) to violate any provision of this Act, any regulation
promulgated under this Act, or any term or condition of any
permit issued under this Act; or
(9) to attempt to commit any act described in paragraph
(1), (2), (7), or (8).
SEC. 11. ENFORCEMENT.
(a) Duties of Secretaries.--This Act shall be enforced by the
Secretary and the Secretary of the department in which the Coast Guard
is operating.
(b) Powers of Enforcement.--
(1) In general.--Any officer who is authorized pursuant to
subsection (a) by the Secretary or the Secretary of the
department in which the Coast Guard is operating to enforce the
provisions of this Act may--
(A) with or without a warrant or other process--
(i) arrest any person, if the officer has
reasonable cause to believe that such person
has committed or is committing an act
prohibited by section 10;
(ii) board, search, or inspect any offshore
aquaculture facility and any related land-based
facility;
(iii) seize any offshore aquaculture
facility (together with its equipment, records,
furniture, appurtenances, stores, and cargo),
and any vessel or vehicle, used or employed in
aid of, or with respect to which it reasonably
appears that such offshore aquaculture facility
was used or employed in aid of, the violation
of any provision of this Act or any regulation
or permit issued under this Act;
(iv) seize any marine species (wherever
found) retained, in any manner, in connection
with or as a result of the commission of any
act prohibited by section 10; and
(v) seize any evidence related to any
violation of any provision of this Act or any
regulation or permit issued under this Act;
(B) execute any warrant or other process issued by
any court of competent jurisdiction; and
(C) exercise any other lawful authority.
(2) Arrests, subpoenas, and warrants.--
(A) Arrest without warrant.--Any officer who is
authorized pursuant to subsection (a) of this section
by the Secretary or the Secretary of the department in
which the Coast Guard is operating to enforce the
provisions of this Act may make an arrest without a
warrant for--
(i) an offense against the United States
committed in his or her presence; or
(ii) a felony cognizable under the laws of
the United States, if he has reasonable grounds
to believe that the person to be arrested has
committed or is committing a felony.
(B) Subpoenas and warrants.--Any such authorized
officer may execute and serve a subpoena, arrest
warrant, or search warrant issued in accordance with
rule 41 of the Federal Rules of Criminal Procedure, or
other warrant of civil or criminal process issued by
any officer or court of competent jurisdiction for
enforcement of the Act, or any regulation or permit
issued under this Act.
(c) Issuance of Citations.--If any officer referred to in
subsection (b)(2)(A) finds that a person who is the holder of a permit
under this Act is engaging in or has engaged in offshore aquaculture in
violation of any provision of this Act, such officer may issue a
citation to that person for purposes of subsection (d)(1).
(d) Permit Suspension, Modification, or Revocation.--
(1) Repeated citation.--If the Secretary finds that a
person is repeatedly cited under subsection (c) with respect to
offshore aquaculture under a permit, the Secretary shall
immediately suspend or revoke the permit for which the
citations were issued.
(2) Emergency.--If the Secretary determines that an
emergency exists with respect to offshore aquaculture under a
permit under this Act that poses a risk to the safety of
humans, to the marine environment or marine species, or to the
security of the United States, the Secretary shall immediately
suspend, modify, or revoke the permit for such time as the
Secretary may determine necessary to address the emergency.
(3) New information.--The Secretary may suspend, modify, or
revoke a permit under this Act at any time if the Secretary
determines, based on information obtained after the issuance of
the permit (including information obtained under the research
program under section 7), that the permit terms and conditions
are no longer consistent with the terms of this Act.
(4) Opportunity to be heard.--The Secretary shall afford
the permit holder a prompt postsuspension, postmodification, or
postrevocation opportunity to be heard regarding the
suspension, modification, or revocation.
(e) Enforcement Under Magnuson-Stevens Fishery Conservation and
Management Act.--For purposes of sections 308, 309, and 310 of the
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C.
1858, 1859, 1860), a violation of this Act shall be treated as a
violation of section 307(1) of that Act (16 U.S.C. 1857(1)).
(f) Citizen Suits.--
(1) In general.--
(A) Actions authorized.--Except as provided in
paragraph (2), any person may commence a civil suit on
his or her own behalf--
(i) to enjoin any person, including the
United States and any other governmental
instrumentality or agency (to the extent
permitted by the Eleventh Amendment to the
Constitution), who is alleged to be in
violation of any provision of this Act, permit,
or regulation issued under the authority
thereof; or
(ii) against the Secretary where there is
alleged a failure of the Secretary to perform
any act or duty under this Act that is not
discretionary with the Secretary.
(B) Jurisdiction.--The district courts shall have
jurisdiction, without regard to the amount in
controversy or the citizenship of the parties, to
enforce any such provision or regulation or to order
the Secretary to perform such act or duty, as the case
may be.
(2) Limitations.--
(A) Action to enjoin.--No action may be commenced
under paragraph (1)(A)(i)--
(i) prior to 60 days after written notice
of the violation has been given to the
Secretary, and to any alleged violator of any
such provision, permit, or regulation;
(ii) if the Secretary has commenced action
to impose a penalty pursuant to the other
provisions of this Act; or
(iii) if the United States has commenced
and is diligently prosecuting a criminal action
in a court of the United States or a State to
redress a violation of any such provision,
permit, or regulation.
(B) Action against secretary.--No action may be
commenced under paragraph (1)(A)(ii) prior to 60 days
after written notice has been given to the Secretary.
(3) Venue.--Any suit under this subsection may be brought
in the judicial district in which the violation occurs.
(4) Intervention by attorney general.--In any such suit
under this subsection in which the United States is not a
party, the Attorney General, at the request of the Secretary,
may intervene on behalf of the United States as a matter of
right.
(5) Award of costs.--The court, in issuing any final order
in any suit brought pursuant to paragraph (1), may award costs
of litigation (including reasonable attorney and expert witness
fees) to any party, whenever the court determines such award is
appropriate.
(6) Other rights not affected.--The injunctive relief
provided by this subsection shall not restrict any right that
any person (or class of persons) may have under any statute or
common law to seek enforcement of any standard or limitation or
to seek any other relief (including relief against the
Secretary or a State agency).
SEC. 12. NATURAL RESOURCES DAMAGES ASSESSMENT AND LIABILITY.
(a) Natural Resources Damages Assessment.--The Secretary shall--
(1) assess natural resource damages resulting from the
conduct of offshore aquaculture other than as authorized under
Federal or State law; and
(2) carry out remediation of destruction or loss of, or
injury to, natural resources resulting from such conduct and
determined in such an assessment.
(b) Liability for Damages.--
(1) In general.--Except as provided in paragraph (2), any
person who conducts offshore aquaculture other than as
authorized under Federal or State law shall be strictly liable
to the United States for natural resources damages resulting
from such offshore aquaculture that are assessed by the
Secretary under subsection (a).
(2) Limitation.--A person is not liable under this section
for natural resources damages if that person establishes that--
(A) the destruction or loss of, or injury to,
natural resources from which such damages arose was
caused solely by an act of God, an act of war, or an
act of omission of a third party, and the person acted
with due care;
(B) such destruction, loss, or injury was caused by
an activity authorized by Federal or State law; or
(C) such destruction, loss, or injury was
negligible.
SEC. 13. ENCOURAGING WORLDWIDE ADHERENCE TO THE AQUACULTURE PROVISIONS
OF THE CODE OF CONDUCT FOR RESPONSIBLE FISHERIES.
The Secretary shall--
(1) urge United Nations Food and Agriculture Organization
to adopt a protocol to the Code of Conduct for Responsible
Fisheries elaborating the need for, and ways to achieve, net
seafood production from aquaculture;
(2) work to ensure that international fisheries agreements
recognize the importance of--
(A) forage fish in marine ecosystem dynamics; and
(B) fishery management that maintains the structure
and function of marine food webs;
(3) use bilateral economic and scientific relationships to
encourage countries to manage their domestic stocks of forage
fish on an ecosystem basis; and
(4) lead an international effort for the development of a
traceability system for distinguishing, identifying, and
sourcing fishmeal and fish oil so that ecologically sustainable
feeds are available and distinguishable to aquaculture.
SEC. 14. DEFINITIONS.
In this Act:
(1) Advisory board.--The term ``advisory board'' means the
Sustainable Offshore Aquaculture Advisory Board established
under section 3(b).
(2) Antifouling paint.--The term ``antifouling paint'' has
the meaning that term has in section 3 of the Organotin
Antifouling Paint Control Act of 1988 (33 U.S.C. 2402).
(3) Coastal state.--The term ``coastal State'' means--
(A) a State of the United States in, or bordering
on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of
Mexico, or Long Island Sound; and
(B) Puerto Rico, the Virgin Islands, Guam, the
Commonwealth of the Northern Mariana Islands, the Trust
Territories of the Pacific Islands, and American Samoa.
(4) Coastline.--The term ``coastline'' means the line of
ordinary low water along that portion of the coast that is in
direct contact with the open sea and the line marking the
seaward limit of inland waters.
(5) Damages.--The term ``damages'' includes--
(A) compensation for--
(i) the cost of replacing, restoring, or
acquiring natural resources that are equivalent
to natural resources that are destroyed, lost,
or injured; or
(ii) the value of natural resources that
are destroyed, lost, or injured, if the natural
resources cannot be restored or replaced or if
the equivalent of such natural resources cannot
be acquired;
(B) the cost of a natural resource damage
assessment under subsection 12(a);
(C) the reasonable cost of monitoring appropriate
to injured, restored, or replaced natural resources;
and
(D) the cost of enforcement actions undertaken by
the Secretary in response to the destruction or loss
of, or injury to natural resources, including storage,
care, and maintenance of any marine species or other
seized property.
(6) Exclusive economic zone.--The term ``exclusive economic
zone'' has the meaning that term has in the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C. 1801 et
seq.).
(7) Fish byproducts.--The term ``fish byproducts''--
(A) except as provided in subparagraph (B), means
fish parts, including skin, head, viscera, and bone
that result from the processing of either fish produced
by aquaculture or wild-caught fish; and
(B) does not include bycatch.
(8) Genetically modified species.--The term ``genetically
modified species'' means an organism with genetic material that
has been deliberately altered using genetic engineering
technologies.
(9) Habitat areas of particular concern.--The term
``habitat area of particular concern'' means a habitat area
that is ecologically vulnerable based on one or more of the
following considerations:
(A) The importance of the ecological function
provided by the habitat.
(B) The extent to which the habitat is sensitive to
human-induced environmental degradation.
(C) Whether, and to what extent, development
activities are, or will be, stressing the habitat type.
(D) The rarity of the habitat type.
(10) Marine protected area.--The term ``marine protected
area'' means any area of the marine environment that has been
reserved by Federal, State, territorial, tribal, or local laws
or regulations to provide lasting protection for part or all of
the natural and cultural resources therein.
(11) Marine reserve.--The term ``marine reserve'' means a
type of marine protected area where extractive uses are
prohibited.
(12) Marine species.--The term ``marine species'' means
finfish, mollusks, crustaceans, marine algae, and all other
forms of marine life, excluding marine mammals and birds.
(13) National marine sanctuary.--The term ``national marine
sanctuary'' means any area designated as a national marine
sanctuary for purposes of the National Marine Sanctuaries Act
(16 U.S.C. 1431 et seq.).
(14) Natural resource.--The term ``natural resource'' means
land, fish, wildlife, biota, air, water, and other such
resources belonging to, managed by, held in trust by,
appertaining to, or otherwise controlled by the United States,
any State or local government, or any Indian tribe.
(15) Office.--The term ``Office'' means the Office of
Sustainable Offshore Aquaculture established under section
3(a).
(16) Offshore aquaculture.--The term ``offshore
aquaculture'' means all activities related to--
(A) the placement of any installation, facility, or
structure in the exclusive economic zone for the
purposes of propagation and rearing, or attempted
propagation and rearing, of marine species; and
(B) the operation of any installation, facility, or
structure in the exclusive economic zone for the
purposes of propagation and rearing, or attempted
propagation and rearing, of marine species.
(17) Offshore aquaculture facility.--The term ``offshore
aquaculture facility'' means--
(A) a structure, installation, or other complex
placed, in whole or in part, for the purposes of
propagation and rearing, or attempted propagation and
rearing of marine species in the exclusive economic
zone; and
(B) an area of the seabed or the subsoil used for
such placement.
(18) Overfishing and overfished.--Each of the terms
``overfishing'' and ``overfished'' has the meaning that term
has in the Magnuson-Stevens Fishery Conservation and Management
Act (16 U.S.C. 1801 et seq.).
(19) Secretary.--The term ``Secretary'' means the Secretary
of Commerce.
(20) Special management zone.--The term ``special
management zone'' means an area managed by a State under a
special area management plan, as that term is defined in
section 304 of the Coastal Zone Management Act of 1972 (16
U.S.C. 1453).
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