[Federal Register Volume 79, Number 167 (Thursday, August 28, 2014)]
[Proposed Rules]
[Pages 51424-51443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-20407]



[[Page 51423]]

Vol. 79

Thursday,

No. 167

August 28, 2014

Part III





Department of Commerce





-----------------------------------------------------------------------





National Oceanic and Atmospheric Administration





-----------------------------------------------------------------------





50 CFR Parts 600 and 622





Fisheries of the Caribbean, Gulf, and South Atlantic; Aquaculture; 
Proposed Rule

  Federal Register / Vol. 79 , No. 167 / Thursday, August 28, 2014 / 
Proposed Rules  

[[Page 51424]]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 622

[Docket No. 080225276-4124-01]
RIN 0648-AS65


Fisheries of the Caribbean, Gulf, and South Atlantic; Aquaculture

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS proposes regulations to implement the Fishery Management 
Plan for Regulating Offshore Aquaculture in the Gulf of Mexico (FMP), 
as prepared by the Gulf of Mexico Fishery Management Council (Council). 
The FMP entered into effect by operation of law on September 3, 2009. 
If implemented, this rule would establish a comprehensive regulatory 
program for managing the development of an environmentally sound and 
economically sustainable aquaculture industry in Federal waters of the 
Gulf of Mexico (Gulf), i.e., the U.S. exclusive economic zone (EEZ). 
The purpose of this rule is to increase the yield of Federal fisheries 
in the Gulf by supplementing the harvest of wild caught species with 
cultured product.

DATES: Written comments on this proposed rule must be received on or 
before October 27, 2014.

ADDRESSES: You may submit comments on the proposed rule, identified by 
``NOAA-NMFS-2008-0233,'' by any of the following methods:
     Electronic Submissions: Submit electronic public comments 
via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2008-0233, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Submit written comments to Jess Beck-Stimpert, 
Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, 
FL 33701.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    Electronic copies of the FMP, which includes a final programmatic 
environmental impact statement (FPEIS), an initial regulatory 
flexibility analysis (IRFA), and a regulatory impact review (RIR) may 
be obtained from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov.
    Comments regarding the burden-hour estimates or other aspects of 
the collection-of-information requirements contained in this proposed 
rule may be submitted in writing to Anik Clemens, Southeast Regional 
Office, NMFS, 263 13th Ave South, St. Petersburg, FL 33701; and the 
Office of Management and Budget (OMB), by email at 
[email protected], or by fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Jess Beck-Stimpert, 727-824-5301.

SUPPLEMENTARY INFORMATION: Aquaculture in the Gulf will be managed 
under the FMP. The FMP was prepared by the Council and is being 
implemented through regulations at 50 CFR part 622 under the authority 
of the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act).\n\n\n

Background

    Worldwide demand for protein is increasing and fisheries production 
from wild stocks will not likely be adequate to supply the world demand 
for fisheries products without supplementation through aquaculture. In 
the United States, approximately 84 percent of all seafood consumed is 
currently imported from other countries, creating an annual trade 
deficit of over 9 billion dollars. It is estimated by 2025, 2 million 
more metric tons of seafood will be needed over and above what is 
consumed today. Aquaculture is one method to meet current and future 
demands for seafood.
    It has been NOAA's long-standing interpretation that the Magnuson-
Stevens Act provides authority to regulate aquaculture, and thus, that 
fishery management councils have the authority to prepare a fishery 
management plan covering all aspects of aquaculture in the EEZ. The 
Magnuson-Stevens Act defines a ``fishery,'' a key term establishing the 
reach of Magnuson-Stevens Act regulatory authority, as ``one or more 
stocks of fish . . . and any fishing for such stocks.'' 16 U.S.C. 
1802(13). ``Stock of fish'' means ``a species, subspecies, geographical 
grouping, or other category of fish capable of management as a unit.'' 
16 U.S.C. 1802(42). ``Fishing'' is defined as ``the catching, taking or 
harvesting of fish;'' ``any other activity which can reasonably be 
expected to result in the catching, taking, or harvesting of fish;'' 
and ``any operations at sea in support of, or in preparation for, any 
activity described in'' the definition. 16 U.S.C. 1802(16).
    Because the Magnuson-Stevens Act contains no definition of 
``harvesting,'' NMFS looks to the ordinary meaning of that word. 
``Harvest'' is ``the act or process of gathering in a crop.'' Merriam-
Webster Dictionary (2011). ``Crop'' is defined as ``the produce of 
cultivated plants, esp. cereals, vegetables, and fruit;'' ``the amount 
of such produce in any particular season;'' or ``the yield of some 
other farm produce: the lamb crop.'' World English Dictionary (2011). 
Together, these definitions provide a sound basis for concluding that 
``fishing'' includes the catch, take, or harvest of cultured stocks, 
and thus, that aquaculture activities are within the scope of the term 
``fishery'' as used in the Magnuson-Stevens Act. Further, the fact that 
the definition of ``fishing'' includes not just harvesting itself, but 
also activities expected to result in harvesting fish, and operations 
at sea in support of such activities, provides a sound basis for 
concluding that ``fishing'' as used in the Magnuson-Stevens Act 
encompasses, in addition to harvesting the fish from aquaculture 
operations, other activities at sea that are integral to aquaculture 
operations, such as stocking and growing fish in net pens and cages at 
sea.
    Prior to the FMP, there was no process for accommodating 
commercial-scale offshore aquaculture in the Gulf of Mexico EEZ, other 
than live rock aquaculture, which is authorized under Amendments 2 and 
3 to the Fishery Management Plan for Coral and Coral Reefs of the Gulf. 
NMFS may issue an exempted fishing permit (EFP) to conduct offshore 
aquaculture in Federal waters; however, an EFP is of limited duration 
and is not intended for commercial production of fish and shellfish. 
The Council developed the FMP under the authority of the Magnuson-
Stevens Act to authorize the development of commercial aquaculture 
operations in Federal waters of the Gulf. The FMP was initiated to 
provide a comprehensive framework for

[[Page 51425]]

authorizing and regulating offshore aquaculture activities. The FMP 
also establishes a programmatic approach for evaluating the potential 
impacts of proposed aquaculture operations in the Gulf.

Gulf Aquaculture Permits

    If implemented, the rule would require persons to apply for and 
obtain a Gulf aquaculture permit. This permit would authorize the 
operation of an offshore aquaculture facility in the Gulf EEZ and allow 
the sale of allowable aquaculture species cultured at an offshore 
aquaculture facility in the Gulf EEZ. Persons issued a Gulf aquaculture 
permit also would be authorized to harvest, or designate hatchery 
personnel or other entities to harvest, and retain live wild broodstock 
of an allowable aquaculture species, and to possess or transport 
cultured species in, to, or from an offshore aquaculture facility in 
the Gulf EEZ. Permit eligibility would be limited to U.S. citizens and 
permanent resident aliens. Gulf aquaculture permits would be 
transferable as long as the geographic location of the aquaculture 
facility site was unchanged and all applicable permit requirements were 
completed and updated at the time of transfer. The Gulf aquaculture 
permit would be effective for 10 years, and could be renewed in 5 year 
increments thereafter. The permit would initially cost $10,000, and a 
$1,000 fee would be assessed annually. The renewal period for a Gulf 
Aquaculture permit is 5 years; a renewal application would cost $5,000. 
These fees are based on the NOAA Finance Handbook. A Gulf aquaculture 
permit must be prominently displayed and available at the aquaculture 
facility.
    A dealer who receives species cultured at an offshore aquaculture 
facility in the EEZ would be required to have a Gulf aquaculture dealer 
permit. As defined in 50 CFR 600.10, dealer means the person who first 
receives fish by way of purchase, barter, or trade. The cost of a Gulf 
aquaculture dealer permit would be $50.00 if this is the only permit 
that is applied for, or $12.50 if this permit is applied for in 
conjunction with another type of permit. Dealer permits would be issued 
annually and must be prominently displayed and available on the 
dealer's premises. A Gulf aquaculture dealer permit is not 
transferable.

Electronic System Requirements, Account Setup, and Information

    The administrative functions associated with this aquaculture 
program, such as account setup, landing transactions, and reporting, 
are designed to be accomplished online; therefore, all participants 
would need access to a computer and the Internet to participate. NMFS 
would mail permittees information and instructions for using the online 
system and setting up an online aquaculture account, upon issuance of a 
Gulf aquaculture permit or a Gulf aquaculture dealer permit. Assistance 
with online functions would be available from the Permits Office, 
Monday through Friday between 8 a.m. and 4:30 p.m. eastern time.
    Additionally, as a backup to the online system during catastrophic 
conditions, the NMFS Southeast Regional Administrator (RA) would 
provide each aquaculture permittee with paper forms for complying with 
the basic required reporting requirements of the aquaculture program. 
The RA would determine when catastrophic conditions exist, the duration 
of the catastrophic conditions, and which participants or geographic 
areas are affected by the catastrophic conditions. The RA would provide 
timely notice to affected participants and would authorize the affected 
participants' use of paper forms for the duration of the catastrophic 
conditions. Program functions would be limited under the paper-based 
system. Assistance in complying with the requirements of the paper-
based system would be available via the Permits Office, Monday through 
Friday between 8 a.m. and 4:30 p.m. eastern time.
    If some online functions are not available at the time of initial 
implementation of this aquaculture program, participants may comply by 
submitting the required information via email using the appropriate 
forms that are available on the Southeast Regional Office (SERO) Web 
site at http://sero.nmfs.noaa.gov. Once online functions are available, 
participants would have to comply by using the online system unless 
alternative methods are specified.

Application Requirements

    Applications for a Gulf aquaculture permit will be available from 
the RA. Applicants would need to complete and submit the application 
form and all required supporting documents to the RA at least 180 days 
prior to the date the applicant desires the permit to be effective. 
Required information on the application form would include: Business, 
applicant, and hatchery contact information, documentation of U.S. 
citizenship or resident alien status, a baseline environmental 
assessment of the proposed site, a description of the geographic 
location and dimensions of the aquaculture facility and site, a 
description of the equipment, allowable aquaculture systems, and 
methods to be used for grow-out, a list of species to be cultured and 
estimated production levels, a copy of an emergency disaster plan (an 
emergency plan in the event of a disaster), and copies of currently 
valid Federal permits applicable to the proposed aquaculture operation.
    The applicant also would be required to obtain an assurance bond 
sufficient to cover costs associated with removing all components of 
the aquaculture facility, including cultured animals. The Council 
determined that requiring an assurance bond is necessary and 
appropriate for the conservation and management of the fishery because 
it will reduce the potential for navigational hazards and long-term 
impacts on the environment that could result if structures and animals 
remain in the water after an operation terminates its business. See 16 
U.S.C. 1853(b)(14).
    The applicant would also be required to provide a document 
certifying that all broodstock or progeny of such broodstock were 
originally harvested from U.S. waters of the Gulf and were from the 
same population or sub-population where the facility is located, and 
that no genetically modified or transgenic animals would be used or 
possessed at the aquaculture facility. The Council is requiring this 
certification in order to minimize risks to wild stocks in the event 
that escapement of cultured animals occurs. This proposed prohibition 
on genetically modified and transgenic animals is consistent with the 
2011 NOAA Marine Aquaculture Policy which supports the use of ``only 
native or naturalized species in Federal waters unless best available 
science demonstrates use of non-native or other species in Federal 
waters would not cause undue harm to wild species, habitats, or 
ecosystems in the event of an escape.'' Although the terms 
``genetically modified'' and ``transgenic'' are used in this 
rulemaking, NOAA notes that many agencies in the U.S. Government, 
including the Food and Drug Administration (FDA), use the more 
scientifically precise term ``genetically engineered'' to refer to 
these animals. The FDA defines genetically engineered animals as those 
``modified by rDNA techniques, including the entire lineage of animals 
that contain the modification. The term ``genetically engineered 
animal'' can refer to both animals with heritable rDNA constructs and 
animals with non-heritable rDNA constructs (e.g., those modifications 
intended to be used as gene therapy).'' Genetic modification,

[[Page 51426]]

on the other hand, includes a number of different kinds of changes that 
can be introduced, for example, by altering ploidy, chemical or 
radiation mutagenesis, or any selective breeding or assisted 
reproductive technologies.
    The applicant would also be required to provide a copy of the 
contractual agreement with a certified aquatic animal health expert. An 
aquatic animal health expert is defined as a licensed doctor of 
veterinary medicine or a person who is certified by the American 
Fisheries Society, Fish Health Section, as a ``Fish Pathologist'' or 
``Fish Health Inspector.''

Public Comment Process Regarding Gulf Aquaculture Permit Applications

    Once the RA has determined an application is complete, notification 
of receipt of the application would be published in the Federal 
Register. Interested persons would be given up to 45 days to comment on 
the application and comments would be requested during public testimony 
at a Council meeting. The RA would notify the applicant in advance of 
any Council meeting and offer the applicant an opportunity to appear in 
support of their application. After public comment ends, the RA would 
notify the applicant and the Council in writing of the decision to 
issue or deny the Gulf aquaculture permit. Reasons the RA may deny a 
permit might include: Failing to disclose material information; 
falsifying statements of material facts; issuing the permit would pose 
significant risk to marine resources, public health, or safety; issuing 
the permit would result in conflicts with established or potential oil 
and gas infrastructure, access to outer continental shelf (OCS) energy 
or marine mineral resources, safe transit to and from infrastructure 
and future geological and geophysical surveys; or the activity proposes 
activities inconsistent with the objectives of the FMP, Magnuson-
Stevens Act, or other applicable laws. The RA also may consider 
revisions to the application made by the applicant in response to 
public comment before approving or denying the Gulf aquaculture permit.

Consultation With Other Federal Agencies

    During the permit application process the RA will consult with the 
Bureau of Ocean Energy Management and the Bureau of Safety and 
Environmental Enforcement, and other Federal agencies as appropriate, 
to address and resolve any conflicts in use of the OCS, with special 
emphasis on OCS energy programs for resolving and documenting the 
proposed solution of existing conflicts.

Operational Requirements, Monitoring Requirements, and Restrictions

    Permittees would have to abide by operational requirements, 
monitoring requirements, and restrictions, as specified in the 
regulations applicable to aquaculture (50 CFR part 622 and 40 CFR part 
451). To ensure that Gulf Aquaculture permits are used, permittees 
would be required to place 25 percent of allowable aquaculture systems 
approved for use at a specific aquaculture facility in the water at the 
permitted site within 2 years of permit issuance and cultured fish 
would have to be placed in allowable aquaculture systems at the site 
within 3 years of permit issuance. Failure to comply with any of the 
operational requirements, monitoring requirements or restrictions would 
be grounds for revocation of the permit.
    Fingerlings or other juvenile animals obtained for grow-out at an 
aquaculture facility in the EEZ could only be obtained from a hatchery 
located in the U.S. All broodstock used for spawning at a hatchery 
supplying fingerlings or other juvenile animals to an aquaculture 
facility in the Gulf EEZ would have to be certified by the hatchery 
owner as having been marked or tagged (e.g., dart or internal wire 
tag). Prior to stocking fish in allowable aquaculture systems, the 
applicant would have to provide NMFS with a copy of an animal health 
certificate signed by an aquatic animal health expert certifying that 
the fish have been inspected and are visibly healthy and the source 
population tests negative for World Organization of Animal Health (OIE) 
pathogens specific to the cultured species or additional pathogens that 
are subsequently identified as reportable pathogens in the National 
Aquatic Animal Health Plan (NAAHP). This process must be repeated for 
each new stocking event. This requirement is intended to prevent the 
spread of pathogens and disease to wild fish and cultured fish at an 
aquaculture facility.
    The use of biologics, pesticides, and drugs would have to comply 
with all applicable United States Department of Agriculture (USDA), 
Environmental Protection Agency (EPA), and FDA requirements. Use of 
aquaculture feeds would have to be conducted in compliance with EPA 
feed monitoring and management guidelines (40 CFR 451.21). Applicants 
also would have to comply with all monitoring and reporting 
requirements specified in their EPA National Pollutant Discharge 
Elimination System (NPDES) permit and their Army Corp of Engineer's 
(ACOE) Section 10 permit. Additionally, permittees would have to 
inspect allowable aquaculture systems for entanglements or interactions 
with marine mammals, protected species, and migratory birds. The 
frequency of inspections will be specified by NMFS as a condition of 
the permit. Permittees would also have to monitor and report 
environmental assessment data to NMFS in accordance with procedures 
specified by NMFS in guidance available on the SERO Web site.
    At least 30 days before each time a permittee or the permittee's 
designee intends to harvest broodstock from the Gulf, including state 
waters, they would be required to submit a request for broodstock 
harvest to the RA. The request would have to include information on the 
number, size, and species to be harvested, the methods, gear, and 
vessels used for capturing, holding, and transporting broodstock, the 
date and specific location of intended harvest, and the location where 
the broodstock would be delivered. Only gear and methods specified in 
50 CFR 600.725 for the respective fishery could be used for harvest--
except rod-and-reel could be used to harvest red drum. The RA could 
deny a request to harvest broodstock if allowable methods or gear were 
not proposed for use, the number of broodstock was more than necessary 
for spawning and rearing activities, or on other grounds inconsistent 
with FMP objectives or other Federal laws. The RA would provide the 
permittee a written determination if a broodstock harvest request is 
denied. If a broodstock harvest request is approved, the permittee 
would be notified by the RA and required to submit a report to the RA 
within 15 days of the date of harvest summarizing the number, size, and 
species harvested, and the location where the broodstock were captured.

Remedial Actions by NMFS To Address Pathogen Episodes

    NMFS, in cooperation with the USDA's Animal and Plant Health 
Inspection Service (APHIS), may order movement restrictions and/or 
removal of all cultured animals upon confirmation by USDA's APHIS 
reference laboratory that a reportable or emerging pathogen exists and 
poses a threat to the health of wild or cultured fish.

Remedial Actions by NMFS To Address Genetic Issues

    NMFS may sample cultured animals to determine genetic lineage. If 
cultured animals are determined to be genetically

[[Page 51427]]

modified or transgenic, then NMFS would order the removal of all 
cultured animals for which such determination applies. These remedial 
actions by NMFS are intended to prevent or mitigate adverse impacts 
associated with aquaculture in the Gulf EEZ. In conducting the genetic 
testing to determine that all broodstock or progeny of such broodstock 
were originally harvested from U.S. waters of the Gulf, were from the 
same population or sub-population where the facility is located, and 
that juveniles stocked in cages are the progeny of wild broodstock, or 
other genetic testing necessary to carry out the requirements of the 
FMP, NMFS may enter into cooperative agreements with States, may 
delegate the testing authority to any State, or may contract with any 
non-Federal Government entities. As a condition of the permit, NMFS may 
also require the permittee to contract a non-Federal Government third 
party approved by the RA if the RA agrees to accept the third party 
testing results. The non-Federal Government third party may not be the 
same entity as the permittee.

Biological Reference Points, Status Determination Criteria, Annual 
Catch Limits and Accountability Measures

    The primary goal of Federal fishery management, as described in 
National Standard 1 of the Magnuson-Stevens Act, is to conserve and 
manage U.S. fisheries to ``* * * prevent overfishing while achieving, 
on a continuing basis, the optimum yield from each fishery for the 
United States fishing industry.'' Optimum Yield (OY) is defined as the 
amount of fish that provide the greatest net benefits to the Nation, 
particularly with respect to food production and recreational 
opportunities and taking into account the protection of marine 
ecosystems. While economic and social factors are to be considered in 
defining the OY of each fishery, OY may not exceed the maximum 
sustainable yield (MSY), or the maximum amount of fish that can be 
removed without impairing the fishery's ability to replace removals 
through natural growth or replenishment. OY must prevent overfishing 
and, in the case of an overfished fishery, must provide for rebuilding 
stock biomass to a level consistent with that which would produce MSY. 
The Magnuson-Stevens Act also requires that annual catch limits (ACLs) 
and accountability measures (AMs) be established at a level that 
prevents overfishing and achieves OY.
    The MSY and OY of each Council-managed fishery are currently 
limited by the fishery's biological potential. However, establishing an 
aquaculture fishery would increase total yield above and beyond that 
which can be produced solely from wild stocks. Increasing the seafood 
production potential of these fisheries will increase their 
contributions to national, regional, and local economies, and their 
capacity to meet the Nation's nutritional needs.
    The National Standard 1 Guidelines set out standard approaches for 
specifying reference points and management measures, but also recognize 
that there may be circumstances, such as harvests from aquaculture 
operations, that do not fit these standard approaches. 50 CFR 
600.310(h)(3). In these circumstances, the Council may propose 
alternative approaches for satisfying the National Standard 1 
requirements of the Magnuson-Stevens Act.
    Aquaculture operations would harvest all cultured fish and 
invertebrates produced, excluding losses due to natural mortality. Due 
to cultured versus wild stocks being harvested, it would not be 
possible to overharvest the cultured species. Thus, as contemplated by 
the National Standard 1 Guidelines, the Council selected an alternative 
approach to specifying reference points and management measures for the 
aquaculture fishery.
    If implemented, this rule would establish an ACL for offshore 
aquaculture in the Gulf EEZ of 64 million lb (29 million kg), round 
weight, which is equal to OY and MSY specified by the Council. This 
maximum level of harvest represents the average landings of all marine 
species in the Gulf, except menhaden and shrimp, between 2000-2006. The 
Council determined that setting the MSY and OY at this level will allow 
for the future assessment of impacts of aquaculture as the industry 
grows to determine if the specified MSY and OY levels are adequately 
protecting wild stocks and habitat.
    This rule would also limit a person, corporation, or other entity 
from producing more than 20 percent of the total annual ACL (12.8 
million lb (5.8 million kg), round weight) for offshore aquaculture in 
the Gulf EEZ. The restrictions on production are intended to constrain 
landings to less than or equal to the ACL. If, however, the ACL is 
exceeded in a given year, NMFS would issue a control date, after which 
entry into the aquaculture fishery may be limited or prohibited. The 
control date would serve as an AM while the Council initiates a review 
of the OY proxy, ACL, and the Gulf aquaculture program.
    The Council further specified overfished and overfishing criteria 
from existing FMPs for wild stocks, consistent with the provisions at 
50 CFR 600.310(d)(7). It is conceivable that some level of aquaculture 
in the Gulf could result in adverse impacts to wild stocks, which could 
result in overfishing of wild stocks and depletion of wild stocks. 
Therefore, the most logical way to assess impacts of overharvest in 
aquaculture operations is not on the cultured fish actually harvested, 
but the wild stocks remaining in the surrounding environment. 
Overfishing and overfished thresholds for wild stocks have been 
approved by the Council for evaluating the status of managed stocks and 
stock complexes. These thresholds will be used by NMFS to determine if 
offshore aquaculture in the Gulf EEZ is adversely affecting wild 
populations, causing them to become overfished or undergo overfishing. 
This approach is consistent with 50 CFR 600.310(d)(7), which strongly 
encourages councils to designate a primary FMP for stocks identified in 
more than one fishery. In this case, the primary FMPs for overfished 
and overfishing determination purposes are the FMPs established to 
manage wild stocks. Consistency with the Magnuson-Stevens Act National 
Standards Section 6.12 of the FMP discusses the preferred alternatives 
in the FMP as they relate to the Magnuson-Stevens Act and the ten 
National Standards.

Measures To Enhance Enforceability

    Permittees would be required to provide NMFS personnel and 
authorized officers access to their aquaculture facility and records in 
order to conduct inspections and determine compliance with applicable 
regulations relating to Gulf aquaculture in the EEZ. In conducting the 
inspections, NMFS may enter into cooperative agreements with States, 
may delegate the inspection authority to any State, or may contract 
with any non-Federal Government entities. As a condition of the permit, 
NMFS may also require the permittee to contract a non-Federal 
Government third party approved by the RA if the RA agrees to accept 
the third party inspection results. The non-Federal Government third 
party may not be the same entity as the permittee.
    Permittees participating in the aquaculture program would be 
allowed to offload cultured fish at aquaculture dealers only between 6 
a.m. and 6 p.m., local time. All fish landed would have to be 
maintained whole with heads and fins intact. Spiny lobster would have 
to be maintained whole with tail intact until landed ashore. Any 
cultured fish

[[Page 51428]]

harvested from an aquaculture facility and being transported would have 
to be accompanied by the applicable bill of lading through landing 
ashore and the first point of sale.
    Any person transporting cultured fingerlings or other juvenile 
animals from a hatchery to an aquaculture facility, other than a 
hatchery that is integrated with an aquaculture facility, would be 
required to notify NMFS at least 72 hours prior to transport. NMFS also 
would have to be notified 72 hours prior to harvest of cultured fish at 
an aquaculture facility and 72 hours prior to the intended time of 
landing. The landing notification would include the time, date, and 
port of landing. This notification could be provided to NMFS by 
telephone or by accessing the Web-based form available on the Web site.
    Any vessel transporting cultured animals to or from an aquaculture 
facility would be required to stow fishing gear below deck or in an 
area where it is not normally used or readily available for fishing. 
Possession of any wild fish, with the exception of broodstock 
associated with a hatchery in the Gulf EEZ, would be prohibited within 
the boundaries of an aquaculture facility's restricted access zone. 
Except when harvesting broodstock, the possession of wild fish aboard 
an aquaculture operation's transport and service vessels, vehicles, or 
aircraft would be prohibited. Stowage and possession requirements are 
intended to enhance enforcement by preventing the simultaneous 
possession of cultured and wild fish.

Species Allowed for Aquaculture

    The FMP allows owners and operators of aquaculture facilities in 
the Gulf EEZ to culture all species native to the Gulf that are managed 
by the Council and included in a fishery management unit (FMU) under a 
current FMP, except those species in the shrimp and coral FMU's. Under 
the FMP, no genetically modified or transgenic animals could be 
cultured in the Gulf. The Council and NMFS are proposing this 
requirement to minimize the risk to wild stocks in the event that 
escapement of cultured animals occurs. The FMP states that the Council 
will request NMFS develop concurrent rulemaking to allow aquaculture of 
highly migratory species.

Allowable Aquaculture Systems for Grow-Out

    Aquaculture systems (e.g., cages or net pens) used for growing fish 
would be evaluated by the RA on a case-by-case basis. The structural 
integrity and ability of proposed aquaculture systems to withstand 
physical stresses associated with major storm events (e.g., hurricanes) 
would be reviewed by the RA, using engineering analyses, computer and 
physical oceanographic models, or other required documentation. The RA 
also would evaluate the potential risks of proposed aquaculture systems 
to essential fish habitat, endangered or threatened species, marine 
mammals, wild fish stocks, public health, or safety. The RA may approve 
or deny a proposed aquaculture system after determination of 
significant risks. If the RA denies use of a proposed aquaculture 
system, then the applicant would be provided a written determination 
from the RA of such findings. Any allowable aquaculture system approved 
for use would have to be marked with a minimum of one properly 
functioning locating device (e.g., GPS device) in the event that the 
allowable aquaculture system is damaged or lost. The U.S. Coast Guard 
also requires structures be marked with lights and signals to ensure 
compliance with private aids to navigation (33 CFR 66.01).

Siting Requirements and Conditions

    Aquaculture facilities would be prohibited in Gulf EEZ marine 
protected areas, marine reserves, habitat areas of particular concern, 
Special Management Zones, permitted artificial reef areas, and coral 
areas specified in 50 CFR part 622. No aquaculture facility could be 
sited within 1.6 nm (3 km) of another aquaculture facility to minimize 
transmission of pathogens between facilities. NMFS notes there is no 
widely accepted standard for how far apart facilities should be sited 
and specifically seeks comment on this distance. Permit sites would 
have to be twice as large as the combined area of the allowable 
aquaculture systems (e.g., cages and net pens) to allow for best 
management practices such as the rotation of systems for fallowing. 
NMFS also would evaluate additional siting criteria on a case-by-case 
basis. Criteria considered would include results of a baseline 
environmental assessment; site depth; frequency of harmful algal blooms 
or hypoxia; and location relative to marine mammal migratory pathways, 
important natural habitats, and fishing grounds. NMFS may deny use of a 
proposed aquaculture site if it poses significant risks to essential 
fish habitat, endangered or threatened species, would result in user 
conflicts with commercial or recreational fishermen or other marine 
resource users, the depth of the site is not sufficient for the 
allowable aquaculture system, substrate and currents at the site would 
inhibit the dispersal of wastes and effluents, the site would pose risk 
to the cultured species due to low dissolved oxygen or harmful algal 
blooms, or other grounds inconsistent with FMP objectives or applicable 
Federal laws.

Aquaculture Facility Restricted Access Zones

    A restricted access zone would be established for each facility. 
Restricting access around aquaculture facilities would afford 
additional protection to an operation's equipment and allowable 
aquaculture systems, and increase safety by reducing potential 
encounters between fishing vessels and aquaculture facility equipment. 
The boundaries of the restricted access zone would correspond to the 
coordinates listed on the approved ACOE Section 10 permit for the site. 
Restricted access zone boundaries would have to be clearly marked with 
a floating device, such as a buoy. No recreational or commercial 
fishing, other than aquaculture, may occur within the restricted access 
zone. Only fishing vessels that have a copy of the aquaculture 
facility's permit with an original signature of the permittee would be 
allowed to operate in or transit through the restricted access zone.

Recordkeeping and Reporting Requirements

    Gulf aquaculture permittees would be required to report to NMFS 
major escapement events; findings of reportable pathogens; and 
entanglements or interactions with marine mammals, protected species, 
or migratory birds. All of these events would have to be reported 
within 24 hours of discovery of the event. Major escapement is defined 
as the escape, within a 24-hour period, of 10 percent of the fish from 
a single allowable aquaculture system (e.g., one cage or one net pen) 
or 5 percent or more of the fish from all allowable aquaculture systems 
combined, or the escape, within any 30-day period, of 10 percent or 
more of the fish from all allowable aquaculture systems combined. 
Reportable pathogens include any OIE pathogen or pathogens that are 
identified as reportable pathogens in the NAAHP. If no major 
escapement, finding of reportable pathogen, or entanglement or 
interaction occurs during a given fishing year, then a permittee would 
be required to submit by January 31 of the following year an annual 
report to the RA indicating no event occurred. If major escapement 
occurs, the permittee would be required to provide to NMFS contact and 
permit information, the duration and location of escapement, the 
cause(s) of

[[Page 51429]]

escapement, the quantity, size, and percent of fish that escaped, by 
species, actions being taken to address the escapement and prevent 
future escapements. If an entanglement or interaction occurs, the 
permittee would be required to submit to NMFS information on the date, 
time, and location of the event, the species involved, the number of 
mortalities or acute injuries, causes of entanglement or interaction, 
and steps being taken to address the entanglement or interaction. If 
reportable pathogens are discovered, the permittee would be required to 
provide NMFS information on the reportable pathogen present, the 
percent of cultured animals infected, the findings of the aquatic 
animal health expert, plans for confirmatory testing, testing results 
(when available), and actions being taken to address the pathogen 
episode.
    In addition to the above-mentioned reporting requirements, 
permittees also would be required to provide to NMFS on a continuing 
basis valid copies of all state and Federal permits required for 
conducting offshore aquaculture and copies of state and Federal permits 
for each hatchery from which fingerlings or other juvenile animals are 
obtained. In addition, permittees would be required to report to NMFS 
if there is a change to the hatchery (or hatcheries) used for obtaining 
fingerlings or other juvenile animals. The NMFS notes that permittees 
are also required to report use of new animal drugs in accordance with 
40 CFR 451.3.
    For recordkeeping requirements, aquaculture facilities must 
maintain: Monitoring reports related to aquaculture activities required 
by state and Federal permits, a daily record of fish introduced or 
removed from each allowable aquaculture system, and original or copies 
of purchase invoices for feed, and sale records. These records would 
have to be provided to NMFS or authorized officers upon request, and be 
maintained for a period of 3 years.
    Aquaculture dealers would be required to complete a landing 
transaction report when purchasing cultured fish from a Gulf 
aquaculture permit holder. The transaction report would include the 
date, time, and location of the transaction; the identity of the Gulf 
aquaculture permit holder, vessel transporting cultured fish to port, 
and dealer involved in the transaction; and the quantity, average 
price, and average weight of each species landed and sold.

Framework Procedures

    The RA may modify MSY, OY, permit application requirements, 
operational requirements and restrictions, including monitoring 
requirements, allowable aquaculture system requirements, siting 
requirements, and recordkeeping and reporting requirements in 
accordance with the framework procedure in the Aquaculture FMP.

Availability of the FMP

    Additional background and rationale for the measures discussed 
above are contained in the FMP. The availability of the FMP was 
announced in the Federal Register on June 4, 2009 (74 FR 26829). The 
comment period for the FMP closed on August 3, 2009. All comments 
received on the FMP or on this proposed rule during their respective 
comment periods will be addressed in the preamble of the final rule.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the FMP, other provisions of the Magnuson-Stevens Act, 
and other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be significant, but not 
economically significant, for purposes of Executive Order 12866.
    NMFS prepared a Draft Programmatic Environmental Impact Statement 
(DPEIS) for this amendment. A notice of availability for the DPEIS was 
published on September 12, 2008 (73 FR 53001). On June 26, 2009, a 
notice of availability was published for the final PEIS (74 FR 30569). 
On April 20, 2010, an explosion occurred on the Deepwater Horizon (DWH) 
MC252 oil rig, resulting in the release of millions of barrels of oil 
into the Gulf of Mexico (Gulf). In addition, Corexit 9500A dispersant 
was applied as part of the effort to contain the spill. On January 25, 
2013 NMFS issued a Notice of Intent (78 FR 5403) to prepare a 
supplement to the Final Programmatic Environmental Impact Statement 
(SFPEIS) for the FMP to consider new information from the Deepwater 
Horizon MC252 blowout.
    NMFS prepared an IRFA, as required by section 603 of the Regulatory 
Flexibility Act, for this proposed rule. The IRFA describes the 
economic impact this proposed rule, if adopted, would have on small 
entities. A description of the action, why it is being considered, and 
the objectives of, and legal basis for this action are contained at the 
beginning of this section in the preamble and in the SUMMARY section of 
the preamble. A copy of the full analysis is available from the Council 
(see ADDRESSES). A summary of the IRFA follows.
    If implemented, the rule would establish a regional permitting 
process to manage the development of an environmentally sound and 
economically sustainable aquaculture industry in Federal waters of the 
Gulf. The Magnuson-Stevens Act provides the statutory basis for the 
proposed rule.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified.
    If implemented, the rule would directly affect entities that seek 
to locate offshore aquaculture and hatchery operations in the Gulf EEZ, 
entities that seek to purchase cultured animals from those waters at 
the first point of sale, and entities that presently operate commercial 
fishing vessels in areas of the Gulf EEZ where offshore aquaculture and 
hatchery operations will be sited.
    The rule would require entities that seek to locate offshore 
aquaculture and hatchery operations in the Gulf EEZ to apply for a Gulf 
aquaculture permit and, if approved, to comply with application and 
operational requirements and restrictions of that permit. Permits would 
be valid for 10 years. Approved entities could renew the permit at 5-
year increments after the first 10 years in order to continue 
operations. The Council considered several alternatives to how long a 
permit is effective and NMFS specifically seeks comment on whether 10 
years is appropriate.
    In addition to these requirements, potential offshore aquaculture 
operations would be required to use allowable species native to the 
Gulf, allowable marine aquaculture systems, comply with siting 
requirements and conditions, mark the restricted access zones around 
their facilities, comply with specific recordkeeping and reporting 
requirements, and individually not produce more than 20 percent of the 
64 million lb (29 million kg), round weight, of those species that 
would be allowed to be produced by all federally permitted offshore 
aquaculture operations in the Gulf EEZ combined. The average time to 
prepare an application and supporting documents (baseline environmental 
assessment, assurance bond, contract with aquatic animal health expert, 
emergency disaster plan) for a Gulf aquaculture permit is estimated to 
be 33 hours. The cost of the permit application would be $10,000 
initially with a subsequent annual fee of $1,000. The cost of the 
permit was calculated consistent with the NOAA Finance Handbook. The 
skill levels associated with the preparation of the required 
documentation for an

[[Page 51430]]

aquaculture permit application and the recordkeeping and reporting 
requirements of an aquaculture operation are not expected to 
necessitate the expertise of personnel beyond those whom would be 
typically employed by a marine aquaculture business. The operational 
requirements specified by the rule, however, are expected to increase 
by an unknown amount the operating costs of an entity that engages in 
offshore aquaculture and hatchery operations in the Gulf EEZ relative 
to the operating costs that would be expected to occur under the other 
alternatives considered. With respect to the compliance requirements 
associated with operation siting and restricted access zone marking, 
these costs are unknowable, but are expected to fall within the 
customary costs of normal business operation.
    The rule also would require any entity that intends to purchase 
cultured animals from the Gulf EEZ at the first point of sale to apply 
for and be issued a Gulf aquaculture dealer permit. The annual cost 
incurred by an entity that seeks to obtain such a permit would be 
$50.00 if this is the only permit that is applied for, or $12.50 if 
this permit is applied for in conjunction with another type of permit. 
Completion of the permit application is estimated to take only minimal 
time, because virtually all dealers would already have another Federal 
dealer permit, and NMFS intends to utilize that existing permit data. 
In most cases, the only additional information required would be to 
check the box requesting a Gulf aquaculture permit. No special skills 
are expected to be required to prepare the dealer permit application.
    Under the rule, no fishing vessels may operate in or transit 
through restricted access zones unless they have a copy of the 
facilities' aquaculture permit onboard. Such compliance would not be 
expected to require special navigational or other vessel-operation 
skills. The expected costs associated with this prohibition are 
discussed below.
    At present, there are no entities, large or small, that have 
offshore aquaculture or hatchery operations in or purchase cultured 
animals from the Gulf EEZ. However, businesses that engage in finfish 
and shellfish farming and hatcheries (NAICS 112511 and 112512) and 
other aquaculture (NAICS 112519) may seek to locate aquaculture or 
hatchery operations in the Gulf EEZ. The Small Business Administration 
(SBA) size standard for these businesses is $0.75 million in annual 
receipts. NMFS estimates that from 5 to 20 offshore aquaculture 
facilities may be established in the Federal waters of the Gulf within 
the next 10 years as a result of the rule.
    NMFS expects offshore aquaculture in the Gulf would be finfish 
aquaculture, most likely red drum, cobia or other similar species. NMFS 
estimates that because of distances from shore, depths of waters, Gulf 
weather and sea conditions, and other environmental factors, the 
smallest economically viable offshore aquaculture operation in the Gulf 
EEZ would raise finfish in 6 cages, requiring an initial investment of 
$2.89 million ($1.5 million for an aquaculture support vessel, $0.96 
million for six cages and associated equipment, $0.33 million for land 
and onshore support facilities, and $0.1 million for service vessels). 
Total variable cost (feed, fingerlings, trips to and from cages, etc.) 
for one grow-out cycle is expected to exceed $1 million. These figures 
exceed the SBA size standard for businesses in finfish, shellfish and 
other aquaculture which is no more than $0.75 million in average annual 
receipts.
    Based on those estimates of the magnitude of initial investment and 
operating costs expected to be required to establish and operate the 
smallest economically viable offshore aquaculture operation in the Gulf 
EEZ for finfish, NMFS expects that any entities that would seek to 
develop and locate an aquaculture operation in the Gulf EEZ would not 
be considered small businesses under the SBA size standards. The 
receipts-based size standards, with exceptions for NAICS Codes 112511 
and 112512, were adjusted for inflation and the adjusted size standards 
went into effect on July 14, 2014. The SBA size standards associated 
with aquaculture in the Gulf EEZ are provided in the following table.

----------------------------------------------------------------------------------------------------------------
                 Industry                    NAICS code               SBA small business size standard
----------------------------------------------------------------------------------------------------------------
                                         Aquaculture and Hatchery Permit
----------------------------------------------------------------------------------------------------------------
Finfish Farming..........................          112511  $0.75 million.
Finfish Hatcheries
Shellfish Farming........................          112512  $0.75 million.
Shellfish Hatcheries
----------------------------------------------------------------------------------------------------------------
                                                  Dealer Permit
----------------------------------------------------------------------------------------------------------------
Fresh and Frozen Seafood Processing......          311712  500 employees.
Fish and Seafood Merchant Wholesalers....          424460  100 employees.
Supermarkets and Other Grocery...........          445110  $32.5 milion ($30 million).
Fish and Seafood Markets.................          445220  $7.5 million ($7 million).
Warehouse Clubs and Superstores..........          452910  $29.5 million ($27 million).
Full Service Restaurants.................          722511  $7.5 million ($7 million).
----------------------------------------------------------------------------------------------------------------
                                             Restricted Access Zones
----------------------------------------------------------------------------------------------------------------
Finfish Fishing..........................          114111  $20.5 million ($19 million).
Shellfish Fishing........................          114112  $5.5 million ($5 million).
Other Marine Fishing.....................          114119  $7.5 million ($7 million).
Charter boat fishing.....................          487210  $7.5 million ($7 million).
----------------------------------------------------------------------------------------------------------------

    As discussed above, if implemented, the rule would require entities 
that purchase cultured animals from Federal waters of the Gulf at the 
first point of sale to obtain an aquaculture dealer permit. As defined 
in 50 CFR 600.10, dealer means the person who first receives fish by 
way of purchase, barter, or trade. Such entities are expected to be 
fish and seafood merchant wholesalers (NAICS 424460), fresh and frozen 
seafood processors (NAICS 311712), supermarkets and other grocery 
(NAICS 445110), fish and seafood markets (NAICS 445220), warehouse 
clubs and

[[Page 51431]]

superstores (NAICS 452910) and full-service restaurants (NAICS 722110). 
The SBA size standards for the wholesalers and processors are 100 
employees and 500 employees, respectively. A supermarket or other 
grocery is classified as a small business if its annual receipts do not 
exceed $32.5 million, and, similarly, a fish and seafood market is 
classified as a small business if its annual receipts do not exceed 
$7.5 million. A full-service restaurant or a warehouse club/superstore 
is classified as a small business if its annual receipts do not exceed 
$7.5 million or $29.5 million, respectively. Because there are 
presently no animals cultured in the Gulf EEZ, there is much 
uncertainty regarding the numbers of entities, both large and small, 
that would be directly affected by the aquaculture dealer permit 
requirement. However, as stated previously, the annual cost and average 
time to these entities would be no greater than $50 and 20 minutes, 
which do not represent a significant economic impact.
    The rule would create restricted access zones in the Gulf EEZ that 
could directly affect entities that engage in commercial and for-hire 
fishing by prohibiting their fishing vessels from fishing or transiting 
in these zones. Businesses that engage in commercial fishing are 
classified in the finfish, shellfish and other marine fishing business 
categories (NAICS 114111, 114112, and 114119) and those that engage in 
for-hire fishing are classified in the scenic and sightseeing 
transportation that includes charter boat fishing (NAICS 487210). SBA 
defines a small commercial and for-hire fishing businesses as one with 
annual receipts no greater than $29.5 million and $7.5 million, 
respectively. For this analysis, NMFS assumes that all commercial and 
for-hire fishing businesses that operate in the Gulf EEZ are small 
business entities, because the revenue data available indicate they 
fall within SBA's small entity size standards. Gulf commercial and for-
hire fishing businesses may experience direct adverse economic impacts 
in the form of reduced landings and revenues and/or increased operating 
costs if the restricted access zones around aquaculture and hatchery 
facilities force these fishing businesses to change where they 
historically or currently fish or transit. Although the overall adverse 
economic impact of these restrictions cannot be determined, the 
incidence and magnitude of the adverse economic impact of restricted 
access zones on Gulf fishing businesses is expected to be minor as a 
result of the provisions within the rule that would enable the 
restriction of aquaculture and hatchery sites to areas of the Gulf EEZ 
that are not important to commercial and for-hire fishing. As a result, 
it is expected that the areas where aquaculture and hatchery production 
will develop will not include waters that are important to commercial 
and for-hire fishing. Consequently, no significant direct adverse 
economic impacts on Gulf commercial and for-hire fishing businesses are 
expected to occur as a result of the rule.
    In summary, the only small entities that would be expected to be 
directly affected by the rule are current or prospective seafood 
dealers and commercial and for-hire fishermen. The direct costs to 
seafood dealers would be limited to minor permitting costs, while the 
direct economic impacts to fishing operations are not expected to be 
significant, because aquaculture and hatchery production is not 
expected to develop in areas that are important to commercial and for-
hire fishing. No other potential direct adverse economic impacts on 
small entities have been identified. Thus, it is expected that this 
rule would not result in a significant direct adverse economic impact 
on a substantial number of small entities. However, NMFS specifically 
invites comments on this finding.
    Three alternatives, including the status quo no-action alternative, 
were considered for the action to establish a Gulf aquaculture permit. 
This proposed rule would support the development of a commercial 
offshore aquaculture industry in the Gulf EEZ by creating a 
transferrable permit that authorizes commercial offshore aquaculture 
and hatchery operations in Federal waters of the Gulf. The no-action 
alternative would not support the development of a commercial offshore 
aquaculture industry in the Gulf EEZ, because the only existing means 
of permitting similar activities, an Exempted Fishing Permit (EFP) or a 
Letter of Acknowledgment, are not viable options for authorizing 
commercial offshore aquaculture or hatchery operations. The third 
alternative would support the development of commercial offshore 
aquaculture in the Gulf EEZ by creating two transferrable permits--an 
operations permit and a siting permit--with separate processes. 
However, the separation of the permitting process would be expected to 
increase the time and costs required to obtain the necessary permits to 
engage in commercial offshore aquaculture and could generate unexpected 
negative consequences such as creating compatibility issues between 
approved operation plans and permitted sites (e.g., aspects of a 
specific operation plan may only be appropriate if the operation is to 
occur at a certain site).
    Three alternatives, including the status quo no-action alternative, 
were considered for the action to establish permit requirements and 
restrictions. This rule would establish specific application 
requirements and operational requirements and restrictions. The no-
action alternative would not establish any application or operational 
requirements and restrictions for commercial aquaculture and hatchery 
operations in the Gulf EEZ, which could result in significant negative 
externalities and adverse economic impacts. The third alternative would 
establish permit requirements and restrictions identical to the 
application and issuance requirements of an EFP. However, EFP 
requirements are insufficient to address the potentially significant 
negative externalities that could result from long-term commercial 
aquaculture and hatchery operations. The proposed rule is the most 
transparent although most burdensome on offshore aquaculture and 
hatchery operations of the alternatives considered. However, among the 
alternatives considered, the proposed rule is also expected to be the 
most effective in reducing the incidence and severity of the costs of 
potential negative externalities created by commercial offshore 
aquaculture and hatcheries.
    Two alternatives, one with four sub-alternatives, were considered 
for the action to specify the duration of a Gulf aquaculture permit. 
This proposed rule (one of the sub-alternatives of the second 
alternative) would establish a permit that is effective for 10 years 
and renewable in 5-year increments. The first alternative would 
establish a permit that is effective for 1 year, unless otherwise 
specified in the permit or a superseding notice or regulation. This 
alternative was considered to be of an insufficient duration to allow 
the development of commercial offshore aquaculture. Two of the sub-
alternatives would establish permit durations of 5 and 20 years without 
renewal, but these also were considered to be of insufficient duration 
to encourage the development and sustainability of commercial offshore 
aquaculture. The last sub-alternative would establish a permit of 
indefinite duration, which would be expected to create the greatest 
benefit to offshore aquaculture and hatchery operations. However, a 
permit of indefinite duration would indefinitely prevent others from

[[Page 51432]]

benefitting from the use of the areas where the aquaculture and 
hatchery operations were located, as well as eliminate the review 
opportunity enabled by a periodic permit renewal requirement.
    Four alternatives, including the status quo no-action alternative, 
were considered for the action to specify the species allowed for 
aquaculture and included in the Aquaculture FMU. This rule would allow 
the aquaculture and inclusion in the Aquaculture FMU of all species 
native to the Gulf that are managed by the Council, except shrimp and 
corals. The no-action alternative would allow the aquaculture of any 
species native to the Gulf and not develop an Aquaculture FMU. The 
third alternative would restrict the set of allowable species for 
aquaculture and inclusion in the Aquaculture FMU to species native to 
the Gulf and in the reef fish, red drum, and coastal migratory pelagics 
FMPs. This alternative would allow the smallest number of species to be 
aquacultured among the alternatives considered, which could result in 
the smallest economic benefit to offshore aquaculture operations and, 
conversely, the smallest amount of direct competition with Gulf 
fishermen. The fourth alternative would allow the aquaculture and 
inclusion in the Aquaculture FMU of all species native to the Gulf that 
are managed by the Council, except goliath and Nassau grouper, shrimp, 
and corals. This alternative would allow the aquaculture of more 
species than the third alternative but fewer species than the no-action 
alternative. The proposed rule would allow for the aquaculture of the 
second largest number of species among the alternatives considered, 
which represents, potentially, the second highest economic benefit to 
offshore aquaculture operations and second highest potential economic 
costs to Gulf fishermen as a result of market competition and other 
externalities. The species prohibitions of the rule, however, are 
consistent with the understanding that shrimp aquaculture is more 
appropriate for land-based systems, and coral harvest, except as 
allowed under a live rock permit or for scientific research, is 
prohibited in the Gulf EEZ.
    Three alternatives, including the status quo no-action alternative, 
were considered for the action to specify marine systems allowable for 
aquaculture in the Gulf EEZ. This rule would specify the process and 
criteria that would be used for system approval, but would not specify 
allowable systems. The no-action alternative would rely on existing 
NMFS authority to approve or disapprove specific systems based on 
unspecified evaluation criteria and determination of appropriateness. 
The absence of specified evaluation criteria could result in the 
approval of systems that result in unanticipated adverse environmental 
and economic consequences relative to the more systematic process and 
criteria of the rule. The third alternative would limit the set of 
allowable systems to cages and pens. Although this alternative is the 
most transparent among the alternatives considered in that the system 
options are fewer and, therefore, more easily evaluated by both the 
public and agency, this restriction could potentially deny the use of 
more economically and environmentally beneficial production systems. 
The rule would have the potential flexibility of allowing the use of a 
system that best meets an operation's production goals, while 
addressing the need to reduce potential negative externalities that 
could result from the aquaculture operation. This flexibility might 
also better foster innovation in this field.
    Three alternatives, including the status quo no-action alternative, 
were considered for the action to establish marine aquaculture and 
hatchery siting requirements and conditions. The proposed rule would 
restrict the areas where aquaculture and hatcheries can occur, the 
distance between sites, and the total area of each site in the Gulf 
EEZ. The no-action alternative would allow offshore aquaculture and 
hatchery facilities to be located anywhere the ACOE would permit, 
potentially including historical or recently important fishing areas. 
This alternative would have the greatest potential of directly 
impacting fishing by allowing aquaculture and hatchery operations to be 
located in important harvest areas. The third alternative would 
establish marine aquaculture zones and restrict aquaculture and 
hatchery sites to these zones. Although the third alternative would 
establish zones that do not conflict with important fishing areas, this 
alternative would reduce the flexibility of site location, which could 
require the use of inferior sites with higher start-up and operational 
costs. Also, confining aquaculture and hatchery operations to 
designated zones could result in density problems with associated 
environmental and economic costs. The proposed rule would give 
aquaculture and hatchery operations greater flexibility in locating 
their operations than the third alternative, and would be expected to 
reduce or eliminate the siting of aquaculture and hatchery facilities 
in important fishing areas, which would reduce or eliminate any direct 
costs this alternative would impose on commercial and for-hire fishing 
businesses that fish in these important areas.
    Three alternatives, including the status quo no-action alternative, 
were considered for the action to establish restricted access zones 
around aquaculture facilities. This rule would create a restricted 
access zone around each aquaculture and hatchery facility in the Gulf 
EEZ. These restricted access zones would correspond with the 
coordinates on the approved ACOE siting permit. Fishing would be 
prohibited in these restricted access zones. No recreational or 
commercial fishing vessel could operate in or transit through these 
zones unless they have a copy of the facilities' aquaculture permit 
onboard. Additionally, each facility would be required to mark the 
boundaries of its restricted access zone. The no-action alternative 
would not establish restricted access zones or restrict fishing around 
aquaculture and hatchery facilities and would be expected to result in 
the largest risk, among the alternatives considered, of a fishing 
vessel colliding with or fishing gear damaging an aquaculture facility. 
As a result, the no-action alternative would be expected to have the 
greatest likelihood among the alternatives considered of resulting in 
injury to personnel and loss of cultured and wild-caught fish, 
equipment and vessels. The third alternative would establish buffer 
zones of varying uniform distances from aquaculture facilities. 
However, the boundaries of these zones would not be required to be 
marked, which could make detection of the boundaries difficult, thereby 
diminishing their utility. The third alternative also could result in 
buffer zones that are larger than the restricted access zones that 
would be established by the rule, thereby increasing the area where 
fishing would be prohibited, resulting in potentially increased adverse 
economic impacts on fishermen compared to the rule.
    Two alternatives, including the status quo no-action alternative, 
were considered for the action to establish recordkeeping and reporting 
requirements for offshore aquaculture. If implemented, the rule would 
establish 17 recordkeeping and reporting requirements on aquaculture 
operations. Although these requirements are expected to increase the 
operating costs of aquaculture operations, these requirements are 
considered to be necessary to manage the aquaculture fishery and reduce 
the incidence and severity of adverse environmental events. The no-
action alternative would

[[Page 51433]]

not establish any recordkeeping or reporting requirements or impose any 
additional costs on aquaculture operations. However, the absence of 
mandatory reporting and record-keeping requirements would be expected 
to decrease the ability to effectively monitor the conduct of the 
aquaculture industry as well as reduce the incidence and severity of 
adverse environmental events.
    Two alternatives, including the status quo no-action alternative, 
and multiple sub-alternatives were considered for the action to 
establish a production cap for individual entities. The rule proposed 
here would limit the annual production of an individual entity or 
corporation to 12.8 million lb (5.8 million kg), round weight, which is 
20 percent of the maximum 64 million-lb (29 million-kg), round weight, 
OY. The no-action alternative would not limit the production of 
individual entities. The two sub-alternative production caps would 
establish lower caps than the rule, limiting the production by an 
individual entity to either 5 or 10 percent of the OY. Each of these 
sub-alternatives would be expected to result in lower economic benefits 
to aquaculture producers and associated businesses, because the lower 
caps may adversely affect the ability to take advantage of greater 
economies of scale. Conversely, the lower the cap, the greater the 
number of potential individual aquaculture producers and associated 
potential increase in economic and social benefits derived from 
increased competition. The 20-percent cap in the rule was selected as a 
reasonable limit on production concentration while still enabling the 
potential realization of economy-of-scale benefits.
    Three alternatives, including the status quo no-action alternative, 
were considered for the action to specify an organizational framework 
for modifying the aquaculture biological reference points, status 
determination criteria, and management measures. The proposed rule 
would establish framework authority that would support the development 
and implementation of timely changes as necessary in response to 
changing aquaculture technologies or unforeseen fishery and 
environmental conditions. The no-action alternative would not specify 
framework authority, which would result in a requirement for the 
development of a full plan amendment in order to develop and implement 
necessary changes to the Aquaculture FMP. Requiring the development of 
a full plan amendment in order to develop and implement necessary 
changes to the FMP might delay necessary management actions, 
potentially resulting in increased adverse environmental and economic 
effects relative to the rule, and would not achieve the Council's 
objectives. The third alternative would establish framework procedures 
just for changing the biological reference points. This alternative 
would limit the Council's ability to make timely changes for the 
broader category of management actions that the rule would support and, 
as a result, also would be expected to potentially result in increased 
adverse environmental and economic effects compared to the rule. The 
rule would give the Council and NMFS the greatest amount of flexibility 
among the alternatives considered in responding to changing fishery 
conditions, such as aquaculture technologies and practices, which in 
turn would support the development and implementation of timely 
regulatory changes and the greatest net economic benefits to offshore 
aquaculture producers and Gulf fishermen.
    In addition to actions discussed above, two alternatives were 
considered, including the status quo no-action alternative, and 
multiple sub-alternatives for an action to establish biological 
reference points and status determination criteria for offshore 
aquaculture. The FMP establishes an MSY and OY at 64 million lb (29 
million kg), round weight. The FMP also requires NMFS to publish a 
control date, after which entry into the aquaculture fishery could be 
limited or restricted, if industry production exceeded the OY. The no-
action alternative would not establish biological reference points, 
status determination criteria, or require the establishment of a 
control date. Because the specification of biological reference points 
and status determination criteria are mandatory components for an FMP, 
the no-action alternative would not support the development of an 
aquaculture industry in the Gulf EEZ and would not achieve the 
Council's objectives. Three of the biological reference point sub-
alternatives would establish MSYs and OYs that are less than those of 
the rule, ranging from 16 to 36 million lb (7.3 to 16.3 million kg), 
round weight, while one sub-alternative would establish higher levels, 
190 million lb (86 million kg), round weight. The lower values would be 
expected to result in lower economic benefits to the aquaculture 
industry and lower potential indirect costs to fishermen in competitive 
markets and associated industries compared to the proposed rule, while 
the higher values would be expected to result in the reverse.
    This rule contains collection-of-information requirements subject 
to the PRA. Notwithstanding any other provision of law, no person is 
required to respond to, nor shall a person be subject to a penalty for 
failure to comply with, a collection of information subject to the 
requirements of the Paperwork Reduction Act (PRA) unless that 
collection of information displays a currently valid Office of 
Management and Budget (OMB) control number.
    The collections and the associated estimated average public 
reporting burden per response are provided in the following table.

------------------------------------------------------------------------
        Collection requirement           Estimated burden per response
------------------------------------------------------------------------
Federal Permit Application for         3 hours.
 Offshore Aquaculture in the Gulf of
 Mexico (for new permits and
 renewals).
Annual Report........................  10 minutes.
Baseline Environmental Assessment....  24 hours.
Certification for Broodstock and       10 minutes.
 Juveniles.
Request to Harvest Broodstock........  30 minutes.
Broodstock Post-Harvest Report.......  30 minutes.
Request to Transfer Gulf Aquaculture   3 hours.
 Permit.
Notification of Entanglement or        30 minutes.
 Interaction.
Notification of Major Escapement       30 minutes.
 Event.
Notification of Reportable Pathogen    30 minutes.
 Episode.
Notification to Transport Cultured     10 minutes.
 Juveniles to Offshore Systems.
Harvest and Landing Notification.....  30 minutes.
Dealer Permit Application............  30 minutes.
Dealer Report for Landing and Sale...  30 minutes.
Assurance Bond.......................  1 hour.

[[Page 51434]]

 
Contract with Aquatic Animal Health    1 hour.
 Expert.
Emergency Disaster Plan..............  4 hours.
Fin Clip Samples.....................  10 hours.
Broodstock Marking Requirement.......  8 hours.
------------------------------------------------------------------------

    These requirements have been submitted to OMB for approval. These 
estimates of the public reporting burden include the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collections of information.
    Public comment is sought regarding: Whether these proposed 
collections of information are necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; the accuracy of the burden estimates; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments 
regarding the burden estimates or any other aspect of the collection-
of-information requirements, including suggestions for reducing the 
burden, to NMFS and to OMB (see ADDRESSES).

Public Participation

    It is the policy of the Department of Commerce, whenever 
practicable, to afford the public an opportunity to participate in the 
rulemaking process. Accordingly, interested persons may submit written 
comments regarding this proposed rule by one of the methods listed in 
the ADDRESSES section. All comments must be received by midnight of the 
close of the comment period.
    In addition to accepting comments on the actions discussed in the 
preamble above, NMFS is particularly interested in comments from the 
public concerning:
    (1) The definition of ``significant risk'' and whether it is a 
different standard than what is established under the Endangered 
Species Act.
    (2) The use of the term ``genetically modified organism'' in the 
rule and whether it should be changed to ``genetically engineered 
animal'' to be consistent with terminology used by the FDA. The FDA 
uses the term ``genetically engineered animal'' as opposed to 
``genetically modified organism'' because ``genetically engineered 
animal'' more accurately describes the use of modern biotechnology. 
Modern biotechnology means the application of in vitro nucleic acid 
techniques, including, among others, recombinant deoxyribonucleic acid 
(DNA) and direct injection of nucleic acid into cells or organelles, or 
fusion of cells beyond the taxonomic family, that overcome natural 
physiological reproductive or recombinant barriers and that are not 
techniques used in traditional breeding and selection of plants or 
other organisms.
    (3) Whether the definition of ``genetically modified organism'' 
should be removed and a definition for ``genetically engineered 
animal'' should be added in Sec.  622.2 of the rule, which is more 
consistent with the definition used by FDA. FDA defines the term 
``genetically engineered animal'' as an ``animal modified by rDNA 
techniques, including the entire lineage of animals that contain the 
modification. The term `genetically engineered animal' can refer to 
both animals with heritable rDNA constructs and animals with non-
heritable rDNA constructs (e.g., those modifications intended to be 
used as gene therapy).'' An animal that has been altered such that its 
ploidy has been changed (e.g., a triploid animal) is not considered to 
be genetically engineered provided that that animal does not contain 
genes that have been introduced or otherwise altered by modern 
biotechnology.
    (4) Whether it would be sufficiently protective to require 
broodstock to be collected from another population within the Gulf of 
Mexico, rather than the same population or sub-population where the 
facility is located. What additional costs or burdens does the 
requirement to collect from the same sub-population impose on 
aquaculture facilities?
    (5) Whether it is necessary for facilities to provide a Notice of 
Harvest to NMFS in order to ensure that only cultured animals are 
landed.
    (6) The additional costs, if any, of maintaining a daily record of 
the number of fish introduced into and number or pounds and average 
weight of fish removed from each allowable aquaculture system, 
including mortalities. In addition, the extent to which this 
information aids enforcement of production quotas and auditing.
    (7) The practical utility and additional cost of the proposed 
requirement to maintain original purchase invoices for feed, or copies 
of such invoices, for 3 years from the date of purchase in light of the 
recordkeeping requirement in EPA regulations at 40 CFR 451.21(g)(1).
    (8) Additionally, NMFS seeks public comment on the draft 
Supplemental Information Report (SIR). Because the FMP entered into 
effect in 2009, NMFS has prepared a draft supplemental information 
report (SIR) to evaluate whether there is a need for supplemental NEPA 
analysis on the FMP, specific to the passage of time. The Council on 
Environmental Quality regulations state that agencies shall prepare 
supplements to either draft or final environmental impact statements 
if: The agency makes substantial changes in the proposed action that 
are relevant to environmental concerns; or there are significant new 
circumstances or information relevant to environmental concerns and 
bearing on the proposed action or its impacts (40 CFR 1502.9(c)). The 
draft SIR concludes that there are no substantial changes to the 
proposed action or significant new circumstances or information that 
require the preparation of an additional supplement to the Final 
Programmatic Environmental Impact Statement for the FMP. The draft SIR 
can be accessed at: (http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/aquaculture/index.html).

List of Subjects

50 CFR Part 600

    Administrative practice and procedures, Confidential business 
information, Fisheries, Fishing, Fishing vessels, Foreign relations, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Statistics.

50 CFR Part 622

    Aquaculture, Fisheries, Fishing, Gulf of Mexico, Reporting and 
recordkeeping requirements.


[[Page 51435]]


    Dated: August 22, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR parts 600 and 622 
are proposed to be amended as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

0
1. The authority citation for part 600 continues to read as follows:

    Authority:  5 U.S.C. 561 and 16 U.S.C. et seq.

0
2. In Sec.  600.725, in paragraph (v), in the table, under the heading 
``IV. Gulf of Mexico Fishery Management Council'', entry 21 ``Offshore 
aquaculture (FMP)'' is added to read as follows:


Sec.  600.725  General prohibitions.

* * * * *
    (v) * * *

------------------------------------------------------------------------
                Fishery                       Authorized gear types
------------------------------------------------------------------------
 
                              * * * * * * *
------------------------------------------------------------------------
              IV. Gulf of Mexico Fishery Management Council
------------------------------------------------------------------------
 
                              * * * * * * *
------------------------------------------------------------------------
21. Offshore aquaculture (FMP).........  Cages, net pens.
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *

PART 622--FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH 
ATLANTIC

0
3. The authority citation for part 622 continues to read as follows:

    Authority:  16 U.S.C. 1801 et seq.
0
4. In Sec.  622.1, in Table 1, an entry for ``FMP for Regulating 
Offshore Marine Aquaculture in the Gulf'' is added in alphabetical 
order to read as follows:


Sec.  622.1  Purpose and scope.

* * * * *

        Table 1 to Sec.   622.1--FMPs Implemented Under Part 622
------------------------------------------------------------------------
                                      Responsible
            FMP Title             fishery management   Geographical area
                                      council(s)
------------------------------------------------------------------------
 
                              * * * * * * *
FMP for Regulating Offshore       GMFMC.............  Gulf.
 Marine Aquaculture in the Gulf.
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *
0
5. In Sec.  622.2, definitions for ``Aquaculture'', ``Aquaculture 
facility'', ``Aquaculture system'', ``Aquatic animal health expert'', 
``Cultured animals'', ``Genetically modified organism'', ``Significant 
risk'', ``Transgenic animal'' and ``Wild fish'' are added in 
alphabetical order to read as follows:


Sec.  622.2  Definitions and acronyms.

* * * * *
    Aquaculture means all activities, including the operation of an 
aquaculture facility, involved in the propagation and rearing, or 
attempted propagation and rearing, of allowable aquaculture species in 
the Gulf EEZ.
    Aquaculture facility means an installation or structure, including 
any aquaculture system(s) (including moorings), hatcheries, equipment, 
and associated infrastructure used to hold, propagate, and rear 
allowable aquaculture species in the Gulf EEZ under authority of a Gulf 
aquaculture permit.
    Aquaculture system means any cage, net pen, enclosure, structure, 
or gear deployed in waters of the Gulf EEZ for holding and producing 
allowable aquaculture species.
* * * * *
    Aquatic animal health expert means a licensed doctor of veterinary 
medicine or a person who is certified by the American Fisheries 
Society, Fish Health Section, as a ``Fish Pathologist'' or ``Fish 
Health Inspector.''
* * * * *
    Cultured animals means animals which are propagated and/or reared 
by humans.
* * * * *
    Genetically modified organism means an organism (i.e., animal) that 
has been transformed by the insertion of one or more transgenes (an 
isolated gene sequence often, but not always, derived from a different 
species than that of the recipient). An animal with triploidy is not 
genetically modified, unless the animal also includes one or more 
transgenes.
* * * * *
    Significant risk means likely to jeopardize the continued existence 
of endangered or threatened species or adversely modify their critical 
habitat; is likely to seriously injure or kill marine mammals; is 
likely to result in un-mitigated adverse effects on essential fish 
habitat; is likely to adversely affect wild fish stocks and cause them 
to become overfished or undergo overfishing; or otherwise may result in 
harm to public health or safety, as determined by the RA.
* * * * *
    Transgenic animal means an animal whose genome contains a 
nucleotide sequence that has been intentionally modified in vitro, and 
the progeny of such an animal.
* * * * *

[[Page 51436]]

    Wild fish means fish that are not propagated or reared by humans.
* * * * *
0
6. In Sec.  622.4, in the introductory text, a sentence is added after 
the second sentence to read as follows:


Sec.  622.4  Permits and fees--general.

    * * * See subpart F for permit requirements related to aquaculture 
of species other than live rock. * * *
* * * * *
0
7. In Sec.  622.13, paragraphs (pp) and (qq) are revised and paragraph 
(rr) is added to read as follows:


Sec.  622.13  Prohibitions--general.

* * * * *
    (pp) Fail to comply with any provision related to the Offshore 
Marine Aquaculture program in the Gulf of Mexico as specified in this 
part.
    (qq) Falsify any information required to be submitted regarding the 
Offshore Marine Aquaculture program in the Gulf of Mexico as specified 
in this part.
    (rr) Fail to comply with any other requirement or restriction 
specified in this part or violate any provision(s) in this part.
0
8. Subpart F is added to read as follows:

Subpart F--Offshore Marine Aquaculture in the Gulf of Mexico


Sec.  622.100  General.

    This subpart provides the regulatory structure for enabling 
environmentally sound and economically sustainable aquaculture in the 
Gulf EEZ. Offshore marine aquaculture activities are authorized by a 
Gulf aquaculture permit or Gulf aquaculture dealer permit issued under 
Sec.  622.101 and are conducted in compliance with the provisions of 
this subpart. Aquaculture of live rock is addressed elsewhere in this 
part and is exempt from the provisions of this subpart.
    (a) Electronic system requirements. (1) The administrative 
functions associated with this aquaculture program, e.g., registration 
and account setup, landing transactions and most reporting 
requirements, are intended to be accomplished online via the Southeast 
Regional Office (SERO) Web site at http://sero.nmfs.noaa.gov; 
therefore, a participant must have access to a computer and Internet 
access and must set up an appropriate online aquaculture account to 
participate. Assistance with online functions is available from the 
Permits Office, Monday through Friday between 8 a.m. and 4:30 p.m. 
eastern time; telephone: 1(877)376-4877. If some online reporting 
functions are not available at the time of initial implementation of 
this aquaculture program, this will be indicated on the SERO Web site 
and participants may comply by submitting the required information via 
email using the appropriate forms that are available on the Web site. 
Once online functions are available, participants must comply by using 
the online system unless alternative methods are specified.
    (2) The RA will mail each person who is issued a Gulf aquaculture 
permit or a Gulf aquaculture dealer permit information and instructions 
pertinent to using the online system and setting up an online 
aquaculture account. The RA also will mail each permittee a user 
identification number and will provide each permittee a personal 
identification number (PIN) in a subsequent letter. Each permittee must 
monitor his/her online account and all associated messages and comply 
with all online reporting requirements.
    (3) During catastrophic conditions only, the RA may authorize use 
of paper-based components for basic required functions as a backup to 
what would normally be reported electronically. The RA will determine 
when catastrophic conditions exist, the duration of the catastrophic 
conditions, and which participants or geographic areas are deemed 
affected by the catastrophic conditions. The RA will provide timely 
notice to affected participants via publication of notification in the 
Federal Register, NOAA weather radio, fishery bulletins, and other 
appropriate means and will authorize the affected participants' use of 
paper-based components for the duration of the catastrophic conditions. 
NMFS will provide each aquaculture permittee the necessary paper forms, 
sequentially coded, and instructions for submission of the forms to the 
RA. The paper forms also will be available from the RA. The program 
functions available to participants or geographic areas deemed affected 
by catastrophic conditions may be limited under the paper-based system. 
Assistance in complying with the requirements of the paper-based system 
will be available via the Permits Office, Monday through Friday between 
8 a.m. and 4:30 p.m., eastern time; telephone: 1(877)376-4877.
    (b) [Reserved]


Sec.  622.101  Permits.

    (a) Gulf aquaculture permit. For a person to deploy or operate an 
aquaculture facility in the Gulf EEZ or sell or attempt to sell, at the 
first point of sale, an allowable aquaculture species cultured in the 
Gulf EEZ, a Gulf aquaculture permit must have been issued to that 
person for that aquaculture facility, and the permit must be 
prominently displayed and available for inspection at the aquaculture 
facility. The permit number should also be included on the buoys or 
other floating devices used to mark the restricted access zone of the 
operation as specified in Sec.  622.104(c).
    (1) Eligibility requirement for a Gulf aquaculture permit. 
Eligibility for a Gulf aquaculture permit is limited to U.S. citizens 
as defined in the Immigration and Nationality Act of 1952, as amended, 
and permanent resident aliens lawfully accorded the privilege of 
residing permanently in the U.S. in accordance with U.S. immigration 
laws.
    (2) Application for a Gulf aquaculture permit. Application forms 
are available from the RA. A completed application form and all 
required supporting documents must be submitted by the applicant (in 
the case of a corporation, an officer; in the case of a partnership, a 
general partner) to the RA at least 180 days prior to the date the 
applicant desires the permit to be effective. An applicant must provide 
all information indicated on the application form including:
    (i) Applicant's name, address, and telephone number.
    (ii) Business name, address, telephone number, date the business 
was formed, and, if the applicant is a corporation, corporate structure 
and shareholder information.
    (iii) Information sufficient to document eligibility as a U.S. 
citizen or permanent resident alien.
    (iv) Description of the exact location (i.e., global positioning 
system (GPS) coordinates) and dimensions of the proposed aquaculture 
facility and proposed site, including a map of the site to scale.
    (v) A baseline environmental assessment of the proposed aquaculture 
site. The assessment must be conducted, and the data, analyses, and 
results must be summarized and presented, consistent with the 
guidelines specified by NMFS. NMFS' guidelines will include methods and 
procedures for conducting diver and video surveys, measuring 
hydrographic conditions, collecting and analyzing benthic sediments and 
infauna, and measuring water quality characteristics. The guidelines 
will be available on the SERO Web site and from the RA upon request.
    (vi) A list of allowable aquaculture species to be cultured; 
estimated start up production level by species; and the estimated 
maximum total annual poundage of each species to be harvested from the 
aquaculture facility.

[[Page 51437]]

    (vii) Name and address or specific location of each hatchery that 
would provide juvenile animals for grow-out at the proposed aquaculture 
facility located within the Gulf EEZ and a copy of all relevant, valid 
state or Federal aquaculture permits issued to the hatchery.
    (viii) Prior to issuance of a Gulf aquaculture permit, a copy of 
currently valid Federal permits (e.g., ACOE Section 10 permit, and 
Environmental Protection Agency (EPA) National Pollutant Discharge 
Elimination System (NPDES) permit) applicable to the proposed 
aquaculture site, facilities, or operations.
    (ix) A description of the allowable aquaculture system(s) to be 
used, including the number, size and dimensions of the allowable 
aquaculture system(s), a description of the mooring system(s) used to 
secure the allowable aquaculture system(s), and documentation of the 
allowable aquaculture system's ability to withstand physical stress, 
such as hurricanes, wave energy, etc., including a copy of any 
available engineering analysis.
    (x) A description of the equipment and methods to be used for 
feeding, transporting, maintaining, and removing cultured species from 
aquaculture systems.
    (xi) A copy of the valid USCG certificate of documentation or, if 
not documented, a copy of the valid state registration certificate for 
each vessel involved in the aquaculture operation; and documentation or 
identification numbers for any aircraft or vehicles involved.
    (xii) Documentation certifying that:
    (A) The applicant agrees to immediately remove cultured animals 
remaining in allowable aquaculture systems from the Gulf EEZ as ordered 
by the RA if it is discovered that the animals are genetically modified 
or transgenic;
    (B) The applicant agrees to immediately remove cultured animals 
remaining in allowable aquaculture systems from the Gulf EEZ as ordered 
by the RA if fish are discovered to be infected with a World 
Organization of Animal Health (OIE) reportable pathogen that represents 
a new detection in the Gulf or a new detection for that cultured 
species in the US is found at the facility, or additional pathogens 
that are subsequently identified as reportable pathogens in the 
National Aquatic Animal Health Plan (NAAHP), or any other pathogen 
determined by NMFS and APHIS to pose a significant threat to the health 
of wild aquatic organisms; and,
    (C) The applicant agrees to immediately remove all components of 
the aquaculture system and cultured animals remaining in allowable 
aquaculture systems from the Gulf EEZ as ordered by the RA if there are 
any other violations of the permit conditions or regulations other than 
those listed in paragraphs (a)(2)(xii)(A) and (B) of this section which 
causes the RA to order such removal.
    (xiii) Documentation certifying the applicant has obtained an 
assurance bond sufficient to cover the costs of removal of all 
components of the aquaculture facility, including cultured animals 
remaining in allowable aquaculture systems, from the Gulf EEZ. The 
assurance bond would not be required to cover the costs of removing an 
oil and gas platform. The RA will provide applicants a form and 
associated guidance for complying with the assurance bond requirement. 
The applicant must also provide documentation certifying the applicant 
has established a standby trust fund into which any payments made 
towards the assurance bond can be deposited. The trustee of the standby 
trust may not be the same entity as the permittee. The assurance bond 
is payable at the discretion of the RA to a designee as specified in 
the bond or to a standby trust. When the RA directs the payment into a 
standby trust, all amounts paid by the assurance bond provider must be 
deposited directly into the standby trust fund for distribution by the 
trustee in accordance with the RA's instructions. A permittee will be 
deemed to be without the required financial assurance in the event of 
bankruptcy of the trustee or issuing institution, or a suspension or 
revocation of the authority of the trustee institution to act as 
trustee or of the institution issuing the assurance bond. The permittee 
must establish other financial assurance within 60 days after such an 
event.
    (xiv) Certification by the applicant that all broodstock used to 
provide juveniles to the aquaculture facility were originally harvested 
from U.S. waters of the Gulf, and that each individual broodstock was 
marked or tagged at the hatchery to allow for identification of those 
individuals used in spawning.
    (xv) Certification by the applicant that no genetically modified 
animals or transgenic animals are used or possessed for culture 
purposes at the aquaculture facility.
    (xvi) Copy of a contractual arrangement with an identified aquatic 
animal health expert to provide services to the aquaculture facility 
has been obtained. A copy of the license or certification also must be 
provided to NMFS.
    (xvii) A copy of an emergency disaster plan, developed for and to 
be used by the operator of the aquaculture facility, that includes, 
procedures for preparing or if necessary removing aquaculture systems, 
aquaculture equipment, and cultured animals in the event of a disaster 
(e.g., hurricane, tsunami, harmful algal bloom, chemical or oil spill, 
etc.);
    (xviii) Any other information concerning the aquaculture facility 
or its operations or equipment, as specified on the application form.
    (xix) Any other information that may be necessary for the issuance 
or administration of the Gulf aquaculture permit, as specified on the 
application form.
    (b) Gulf aquaculture dealer permit. For a dealer to receive fish 
cultured by an aquaculture facility in the Gulf EEZ, that dealer must 
first obtain a Gulf aquaculture dealer permit. However, an owner or 
operator of an aquaculture facility with a Gulf aquaculture permit may 
purchase juvenile fish for grow-out from a hatchery located in the Gulf 
EEZ without obtaining a dealer permit. To obtain a dealer permit, the 
applicant must have a valid state wholesaler's license in the state(s) 
where the dealer operates, if required by such state(s), and must have 
a physical facility at a fixed location in such state(s).
    (1) Application for a Gulf aquaculture dealer permit. Application 
forms are available from the RA. The application must be submitted by 
the owner (in the case of a corporation, an officer; in the case of a 
partnership, a general partner). Completed application forms and all 
required supporting documents must be submitted to the RA at least 30 
days prior to the date on which the applicant desires to have the 
permit made effective. An applicant must provide the following:
    (i) A copy of each state wholesaler's license held by the dealer.
    (ii) Name, address, telephone number, date the business was formed, 
and other identifying information of the business.
    (iii) The address of each physical facility at a fixed location 
where the business receives fish from an aquaculture facility in the 
Gulf EEZ.
    (iv) Name, address, telephone number, other identifying 
information, and official capacity in the business of the applicant.
    (v) Any other information that may be necessary for the issuance or 
administration of the permit, as specified on the application form.
    (2) [Reserved]

[[Page 51438]]

    (c) Permit requirements for other aquaculture-related activities. 
For a person to do any of the following, such person must have in his/
her possession and make available upon request by NMFS or an authorized 
officer a copy of a valid Gulf aquaculture permit with an original (not 
copied) signature of the permit owner or owner's agent.
    (1) Possess or transport fish in or from the Gulf EEZ to be 
cultured at an aquaculture facility (e.g., brood stock, fingerlings) or 
possess or transport fish from an aquaculture facility for landing 
ashore and sale.
    (2) Operate, in support of aquaculture related activities, any 
vessel, vehicle, or aircraft authorized for use in operations related 
to an aquaculture facility, i.e., those registered for aquaculture 
operation use.
    (3) Harvest and retain on board a vessel live wild broodstock for 
use in an aquaculture facility regardless of where the broodstock is 
harvested or possessed.
    (d) Permit-related procedures--(1) Fees. A fee is charged for each 
application for a permit submitted under this section and for each 
request for renewal, transfer or replacement of such permit. The amount 
of each fee is calculated in accordance with the procedures of the NOAA 
Finance Handbook, available from the RA, for determining the 
administrative costs of each special product or service. The fee may 
not exceed such costs and is specified with each application form. The 
appropriate fee must accompany each application or request for renewal, 
transfer or replacement.
    (2) Review and notifications regarding a Gulf aquaculture permit. 
(i) The RA will review each application and make a preliminary 
determination whether the application is complete. An application is 
complete when all requested forms, information, and documentation have 
been received. If the RA determines that an application is complete, 
notification of receipt of the application will be published in the 
Federal Register with a brief description of the proposal and 
specifying the intent of NMFS to issue a Gulf aquaculture permit. The 
public will be given up to 45 days to comment, and comments will be 
requested during public testimony at a Council meeting. The RA will 
consult with other Federal agencies, as appropriate, and the Council 
concerning the permit application during the period in which public 
comments have been requested. The RA will notify the applicant in 
advance of any Council meeting at which the application will be 
considered, and offer the applicant the opportunity to appear in 
support of the application. The RA may consider revisions to the 
application made by the applicant in response to public comment before 
approving or denying it.
    (ii) As soon as practicable after the opportunity for public 
comment ends, the RA will notify the applicant and the Council in 
writing of the decision to grant or deny the Gulf aquaculture permit. 
If the RA grants the permit, the RA will publish a notification of the 
permit approval in the Federal Register. If the RA denies the permit, 
the RA will advise the applicant, in writing, of the reasons for the 
denial and publish a notification in the Federal Register announcing 
the denial and the basis for it. Grounds for denial of a Gulf 
aquaculture permit include the following:
    (A) The applicant has failed to disclose material information or 
has made false statements to any material fact, in connection with the 
Gulf aquaculture permit application;
    (B) Based on the best scientific information available, issuance of 
the permit would pose significant risk to the well-being of wild fish 
stocks, marine mammals, threatened or endangered species, essential 
fish habitat, public health, or safety; or,
    (C) Activities proposed to be conducted under the Gulf aquaculture 
permit are inconsistent with aquaculture regulations in this section, 
the management objectives of the Aquaculture FMP, or the Magnuson-
Stevens Act or other applicable law.
    (D) Use of the proposed site is denied based on the criteria set 
forth in Sec.  622.103(a)(4).
    (3) Initial issuance. (i) The RA will issue an initial permit to an 
applicant after the review and notification procedures set forth in 
paragraph (d)(2)(i) of this section are complete and the decision to 
grant the permit is made under paragraph (d)(2)(ii) of this section.
    (ii) Upon receipt of an incomplete application, the RA will notify 
the applicant of the deficiency. If the applicant fails to correct the 
deficiency within 60 days of the date of the RA's letter of 
notification or request an extension of time by contacting the NMFS 
Southeast Regional Office before the end of the 60 day timeframe, the 
application will be considered abandoned.
    (4) Duration. A Gulf aquaculture permit will initially be issued 
for a 10-year period and may be renewed in 5-year increments 
thereafter. An aquaculture dealer permit is an annual permit and must 
be renewed annually. A permit remains valid for the period specified on 
it unless it is revoked, suspended, or modified pursuant to subpart D 
of 15 CFR part 904 or the aquaculture facility is sold and the permit 
has not been transferred or the dealership is sold. Once the 
aquaculture permit is no longer valid, all components of the 
aquaculture facility, including cultured animals remaining in allowable 
aquaculture systems, must be removed immediately from the Gulf EEZ.
    (5) Transfer. (i) A Gulf aquaculture permit is transferable to an 
eligible person, i.e., a U.S. citizen or permanent resident alien if 
the geographic location of the aquaculture site remains unchanged. An 
eligible person who acquires an aquaculture facility that is currently 
permitted and who desires to conduct activities for which a permit is 
required may request that the RA transfer the permit to him/her. At 
least 30 days prior to the desired effective date of the transfer, such 
a person must complete and submit to the RA or via the SERO Web site a 
permit transfer request form that is available from the RA. The permit 
transfer request form must be accompanied by the original Gulf 
aquaculture permit, a copy of a signed bill of sale or equivalent 
acquisition papers, and a written agreement between the transferor and 
transferee specifying who is assuming the responsibilities and 
liabilities associated with the Gulf aquaculture permit and the 
aquaculture facility, including all the terms and conditions associated 
with the original issuance of the Gulf aquaculture permit. All 
applicable permit requirements and conditions must be satisfied prior 
to a permit transfer, including any necessary updates, e.g., updates 
regarding required certifications, legal responsibility for assurance 
bond, other required permits, etc. The seller must sign the back of the 
Gulf aquaculture permit, and have the signed transfer document 
notarized. Final transfer of a Gulf aquaculture permit will occur only 
after the RA provides official notice to both parties that the 
transferee is eligible to receive the permit and that the transfer is 
otherwise valid.
    (ii) An aquaculture dealer permit is not transferable.
    (6) Renewal. An aquaculture facility owner or aquaculture dealer 
who has been issued a permit under subpart F must renew such permit 
consistent with the applicable duration of the permit specified in 
paragraph (d)(4) of this section. The RA will mail an aquaculture 
facility owner or aquaculture dealer whose permit is expiring an 
application for renewal at least 6 months prior to the expiration

[[Page 51439]]

date of a Gulf aquaculture facility permit and approximately two months 
prior to the expiration date of an aquaculture dealer permit. An 
aquaculture facility owner or aquaculture dealer who does not receive a 
renewal application from the RA within the time frames indicated in 
this paragraph must contact the RA and request a renewal application. 
The applicant must submit a completed renewal application form and all 
required supporting documents to the RA at least 120 days prior to the 
date on which the applicant desires to have a Gulf aquaculture permit 
made effective and at least 30 days prior to the date on which the 
applicant desires to have an aquaculture dealer permit made effective. 
If the RA receives an incomplete application, the RA will notify the 
applicant of the deficiency. If the applicant fails to correct the 
deficiency within 60 days of the date of the RA's letter of 
notification or request an extension of time by contacting the NMFS 
Southeast Regional Office before the end of the 60 day timeframe, the 
application will be considered abandoned.
    (7) Display. A Gulf aquaculture permit issued under this section 
must be prominently displayed and available for inspection at the 
aquaculture facility. The permit number should also be included on the 
buoys or other floating devices used to mark the restricted access zone 
of the operation as specified in Sec.  622.104(c). An aquaculture 
dealer permit issued under this section, or a copy thereof, must be 
prominently displayed and available on the dealer's premises. In 
addition, a copy of the dealer's permit, or the aquaculture facility's 
permit (if the fish have not yet been purchased by a dealer), must 
accompany each vehicle that is used to receive fish harvested from an 
aquaculture facility in the Gulf EEZ. A vehicle operator must present 
the permit or a copy for inspection upon the request of an authorized 
officer.
    (8) Sanctions and denials. A Gulf aquaculture permit or aquaculture 
dealer permit issued pursuant to this section may be revoked, 
suspended, or modified, and such permit applications may be denied, in 
accordance with the procedures governing enforcement-related permit 
sanctions and denials found at subpart D of 15 CFR part 904.
    (9) Alteration. A Gulf aquaculture permit or aquaculture dealer 
permit that is altered, erased, or mutilated is invalid.
    (10) Replacement. A replacement Gulf aquaculture permit or 
aquaculture dealer permit may be issued. An application for a 
replacement permit is not considered a new application.
    (11) Change in application information. An aquaculture facility 
owner or aquaculture dealer who has been issued a permit under subpart 
F must notify the RA within 30 days after any change in the applicable 
application information specified in paragraphs (a) or (b) of this 
section. If any change in the information is not reported within 30 
days aquaculture operations may no longer be conducted under the 
permit.


Sec.  622.102  Recordkeeping and reporting.

    (a) Participants in Gulf aquaculture activities addressed in 
subpart F must keep records and report as specified in this section. 
Unless otherwise specified, required reporting must be accomplished 
electronically via the SERO Web site. See Sec.  622.100(a)(3) regarding 
provisions for paper-based reporting in lieu of electronic reporting 
during catastrophic conditions as determined by the RA. Recordkeeping 
(i.e., maintaining records versus submitting reports) may, to the 
extent feasible, be maintained electronically; however, paper-based 
recordkeeping also is acceptable.
    (1) Aquaculture facility owners or operators. An aquaculture 
facility owner or operator must comply with the following requirements.
    (i) Reporting requirements--(A) Transport of fingerlings/juvenile 
fish to an aquaculture facility. Report the time, date, species and 
number of cultured fingerlings or other juvenile animals that will be 
transported from a hatchery to an aquaculture facility at least 72 
hours prior to transport. This information may be submitted 
electronically via the SERO Web site or via phone.
    (B) Major escapement. Report any major escapement or suspected 
major escapement within 24 hours of the event. Major escapement is 
defined as the escape, within a 24-hour period, of 10 percent of the 
fish from a single allowable aquaculture system (e.g., one cage or one 
net pen) or 5 percent or more of the fish from all allowable 
aquaculture systems combined, or the escape, within any 30-day period, 
of 10 percent or more of the fish from all allowable aquaculture 
systems combined. The report must include the items in paragraphs 
(a)(1)(i)(B)(1) through (6) of this section and may be submitted 
electronically via the SERO Web site. If no major escapement occurs 
during a given year, an annual report must be submitted via the Web 
site on or before January 31 each year indicating no major escapement 
occurred.
    (1) Gulf aquaculture permit number;
    (2) Name and phone number of a contact person;
    (3) Duration and specific location of escapement, including the 
number of cages or net pens involved;
    (4) Cause(s) of escapement;
    (5) Number, size, and percent of fish, by species, that escaped; 
and
    (6) Actions being taken to address the escapement.
    (C) Pathogens. Report, within 24 hours of diagnosis, all findings 
or suspected findings of any OIE-reportable pathogen episodes or 
pathogens that are identified as reportable pathogens in the NAAHP, as 
implemented by the USDA and U.S. Departments of Commerce and Interior, 
that are known to infect the cultured species. The report must include 
the items in paragraphs (a)(1)(i)(C)(1) through (6) of this section and 
may be submitted electronically via the SERO Web site. If no finding or 
suspected finding of an OIE-reportable pathogen episode occurs during a 
given year, an annual report must be submitted via the SERO Web site on 
or before January 31 each year indicating no finding or suspected 
finding of an OIE-reportable pathogen episode occurred. See Sec.  
622.108(a)(1) regarding actions NMFS may take to address a pathogen 
episode.
    (1) OIE-reportable pathogen;
    (2) Percent of cultured animals infected;
    (3) Findings of the aquatic animal health expert;
    (4) Plans for submission of specimens for confirmatory testing (as 
required by the USDA);
    (5) Testing results (when available); and
    (6) Actions being taken to address the reportable pathogen episode.
    (D) Landing information. Report the intended time, date, and port 
of landing for any vessel landing fish harvested from an aquaculture 
facility at least 72 hours prior to landing. This information may be 
submitted electronically via the SERO Web site or via phone. The person 
landing the cultured fish must validate the dealer transaction report 
required in paragraph (a)(2)(i) of this section by entering the unique 
PIN number of the Gulf aquaculture permit holder from whom the fish 
were received when the transaction report is submitted.
    (E) Change of hatchery. Report any change in hatcheries used for 
obtaining fingerlings or other juvenile animals and provide updated 
names and addresses or specific locations (if no address is available) 
for the applicable hatcheries no later than 30 days after any such 
change occurs. This information may be

[[Page 51440]]

submitted electronically via the SERO Web site.
    (F) Entanglements or interactions with marine mammals, endangered 
species, or migratory birds. Report any entanglement or interaction 
with marine mammals, endangered species, or migratory birds within 24 
hours of the event. The report must include the items included in 
paragraphs (a)(1)(i)(G)(1) through (5) of this section and may be 
submitted electronically via the SERO Web site. If no entanglement or 
interaction with marine mammals, endangered species, or migratory birds 
occurs during a given year, an annual report must be submitted via the 
SERO Web site on or before January 31 each year indicating no 
entanglement or interaction occurred.
    (1) Date, time, and location of entanglement or interaction.
    (2) Species entangled or involved in interactions and number of 
individuals affected;
    (3) Number of mortalities and acute injuries observed;
    (4) Cause of entanglement or interaction; and
    (5) Actions being taken to prevent future entanglements or 
interactions.
    (G) Any other reporting requirements specified by the RA for 
evaluating and assessing the environmental impacts of an aquaculture 
operation.
    (ii) Other reporting requirements. In addition to the reporting 
requirements in paragraph (a)(1)(i) of this section, an aquaculture 
facility owner or operator must comply with the following reporting 
requirements.
    (A) Provide NMFS with current copies of all valid state and Federal 
permits (e.g., ACOE Section 10 permit, EPA NPDES permit) required for 
conducting offshore aquaculture and report any changes applicable to 
those permits.
    (B) Provide NMFS with current copies of all valid state and Federal 
aquaculture permits for each hatchery from which fingerlings or other 
juvenile animals are obtained and report any changes applicable to 
those permits within 30 days.
    (iii) Recordkeeping requirements. An aquaculture facility owner or 
operator must comply with the following recordkeeping requirements.
    (A) Maintain for the most recent 3 years and make available to NMFS 
or authorized officers, upon request, monitoring reports related to 
aquaculture activities required by all state and Federal permits (e.g., 
ACOE Section 10 permit, EPA NPDES permit) required for conducting 
offshore aquaculture.
    (B) Maintain records of all sales of fish for the most recent 3 
years and make that information available to NMFS or authorized 
officers upon request. Sale records must include the species and 
quantity of fish sold in pounds round weight; estimated average weight 
of fish sold to the nearest tenth of a pound by species; date sold; and 
the name of the entity to whom fish were sold.
    (2) Aquaculture dealer recordkeeping and reporting requirements. A 
dealer who purchases fish from an aquaculture facility in the Gulf EEZ 
must:
    (i) Complete a landing transaction report for each landing and sale 
of cultured fish via the SERO Web site at http://sero.nmfs.noaa.gov at 
the time of the transaction in accordance with reporting form and 
instructions provided on the Web site. This report includes date, time, 
and location of transaction; information necessary to identify the Gulf 
aquaculture permit holder, vessel, and dealer involved in the 
transaction; quantity, in pounds round weight, and estimated average 
weight of each species landed to the nearest tenth of a pound; and 
average price paid for cultured fish landed and sold by market 
category. A dealer must maintain such record for at least 3 years after 
the receipt date and must make such record available for inspection 
upon request of an authorized officer or the RA.
    (ii) After the dealer submits the report and the information has 
been verified, the Web site will send a transaction approval code to 
the dealer and the aquaculture permit holder.
    (b) [Reserved]


Sec.  622.103  Aquaculture facilities.

    (a) Siting requirements and conditions. (1) No aquaculture facility 
may be sited in the Gulf EEZ within a marine protected area, marine 
reserve, Habitat Area of Particular Concern, Special Management Zone, 
permitted artificial reef area specified in this part or a coral area 
as defined in Sec.  622.2.
    (2) No aquaculture facility may be sited within 1.6 nautical miles 
(3 km) of another aquaculture facility and all structures associated 
with the facility must remain within the sited boundaries.
    (3) To allow fallowing and rotation of allowable aquaculture 
systems within a site permitted by the ACOE and approved by NMFS, the 
permitted site for the aquaculture facility must be at least twice as 
large as the combined area of the aquaculture systems (e.g., cages and 
net pens).
    (4) The RA will evaluate siting criteria for proposed offshore 
aquaculture operations on a case-by-case basis. Criteria considered by 
the RA during case-by-case review include data, analyses, and results 
of the required baseline environmental assessment as specified in Sec.  
622.102(a)(2)(v); depth of the site; the frequency of harmful algal 
blooms or hypoxia at the proposed site; marine mammal migratory 
pathways; the location of the site relative to commercial and 
recreational fishing grounds and important natural fishery habitats 
(e.g., seagrasses). The RA may deny use of a proposed aquaculture site 
based on a determination by the RA that such a site poses significant 
risks to wild fish stocks, essential fish habitat, endangered or 
threatened species, marine mammals, will result in user conflicts with 
commercial or recreational fishermen or other marine resource users, 
will result in user conflicts with the OCS energy program, the depth of 
the site is not sufficient for the allowable aquaculture system, 
substrate and currents at the site will inhibit the dispersal of wastes 
and effluents, the site is prone to low dissolved oxygen or harmful 
algal blooms, or other grounds inconsistent with FMP objectives or 
applicable Federal laws. The information used for siting a facility 
with regard to proximity to commercial and recreational fishing grounds 
includes electronic logbooks from the shrimp industry, logbook reported 
fishing locations, siting information from previously proposed or 
permitted aquaculture facilities, and other data that would provide 
information regarding how the site would interact with other fisheries. 
The RA's determination will be based on consultations with appropriate 
NMFS and NOAA offices and programs, public comment, as well as siting 
and other information submitted by the permit applicant. If a proposed 
site is denied, the RA will deny the Gulf Aquaculture Permit and 
provide this determination as required by Sec.  622.101(d)(2)(ii).
    (b) [Reserved]


Sec.  622.104  Restricted access zones.

    (a) Establishment of restricted access zones. NMFS will establish a 
restricted access zone for each aquaculture facility. The boundaries of 
the restricted access zone will correspond with the coordinates listed 
on the approved ACOE Section 10 permit associated with the aquaculture 
facility.
    (b) Prohibited activities within a restricted access zone. No 
recreational fishing or commercial fishing, other than aquaculture, may 
occur in the restricted access zone. No fishing vessel may operate in 
or transit through the restricted access zone unless the vessel

[[Page 51441]]

has on board a copy of the aquaculture facility's permit with an 
original signature, i.e., not a copy of the signature, of the 
permittee.
    (c) Marking requirement. The permittee must mark the restricted 
access zone with a floating device such as a buoy at each corner of the 
zone. Each floating device must clearly display the aquaculture 
facility's permit number and the words ``RESTRICTED ACCESS'' in block 
characters at least 6 inches (15.2 cm) in height and in a color that 
contrasts with the color of the floating device.


Sec.  622.105  Allowable aquaculture systems and species.

    (a) Allowable aquaculture systems. The RA will evaluate each 
proposed aquaculture system on a case-by-case basis and approve or deny 
use of the proposed system for offshore marine aquaculture in the Gulf 
EEZ. Proposed aquaculture systems may consist of cages, net pens, 
enclosures or other structures and gear which are used to culture 
marine species. The RA will evaluate the structural integrity of a 
proposed aquaculture system based, in part, on the required 
documentation (e.g., engineering analyses, computer and physical 
oceanographic model results) submitted by the applicant to assess the 
ability of the aquaculture system(s) (including moorings) to withstand 
physical stresses associated with major storm events, e.g. hurricanes, 
storm surge. The RA also will evaluate the proposed aquaculture system 
and its operations based on the potential to pose significant risks to 
essential fish habitat, endangered or threatened species, marine 
mammals, wild fish stocks, public health, or safety. The RA may deny 
use of a proposed aquaculture system or specify conditions for using an 
aquaculture system based on a determination of such significant risks. 
The RA's evaluation will be based on information provided by the 
applicant as well as consultations with appropriate NMFS and NOAA 
offices and programs. If the RA denies use of a proposed aquaculture 
system or specifies conditions for its use, the RA will deny the Gulf 
Aquaculture Permit and provide this determination as required by Sec.  
622.101(d)(2)(ii).
    (b) Allowable aquaculture species. Only the following federally 
managed species that are native to the Gulf, are not genetically 
modified or transgenic, may be cultured in an aquaculture facility in 
the Gulf EEZ:
    (1) Species of coastal migratory pelagic fish, as defined in Sec.  
622.2.
    (2) Species of Gulf reef fish, as listed in appendix A to part 622.
    (3) Red drum, Sciaenops ocellatus.
    (4) Spiny lobster, Panulirus argus.


Sec.  622.106  Aquaculture operations.

    (a) Operational requirements and restrictions. An owner or operator 
of an aquaculture facility for which a Gulf aquaculture permit has been 
issued must comply with the following operational requirements and 
restrictions.
    (1) Minimum start-up requirement. At least 25 percent of allowable 
aquaculture systems approved for use at a specific aquaculture facility 
at the time of permit issuance must be placed in the water at the 
permitted aquaculture site within 2 years of issuance of the Gulf 
aquaculture permit, and allowable species for aquaculture must be 
placed in the allowable aquaculture system(s) within 3 years of 
issuance of the permit. Failure to comply with these requirements will 
be grounds for revocation of the permit. A permittee may request a 1-
year extension to the above time schedules in the event of a 
catastrophe (e.g., hurricane). Requests must be made in writing and 
submitted to the RA. The RA will approve or deny the request after 
determining if catastrophic conditions directly caused or significantly 
contributed to the permittee's failure to meet the required time 
schedules. The RA will provide the determination and the basis for it, 
in writing, to the permittee.
    (2) Marking requirement. The permittee must maintain a minimum of 
one properly functioning electronic locating device (e.g., GPS device, 
pinger with radio signal) on each allowable aquaculture system, e.g., 
net pen or cage, placed in the water at the aquaculture facility.
    (3) Restriction on allowable hatcheries. A permittee may only 
obtain juvenile animals for grow-out at an aquaculture facility from a 
hatchery located in the U.S.
    (4) Hatchery certifications. (i) The permittee must obtain and 
submit to NMFS a signed certification from the owner(s) of the 
hatchery, from which fingerlings or other juvenile animals are 
obtained, indicating the broodstock have been individually marked or 
tagged (e.g., via a Passive Integrated Transponder (PIT), coded wire, 
dart, or internal anchor tag) to allow for identification of those 
individuals used in spawning.
    (ii) The permittee also must obtain and submit to NMFS signed 
certification from the owner(s) of the hatchery indicating that fin 
clips or other genetic materials were collected and submitted for each 
individual brood animal in accordance with procedures specified by 
NMFS.
    (iii) The certifications required in Sec.  622.106(a)(4)(i) and 
(ii) must be provided to NMFS by the permittee each time broodstock are 
acquired by the hatchery or used for spawning.
    (5) Health certification. Prior to stocking fish in an allowable 
aquaculture system at an aquaculture facility in the Gulf EEZ, the 
permittee must provide NMFS a copy of a health certificate (suggested 
form is USDA/Animal and Plant Health Inspection Service (APHIS) VS 17-
141, OMB 0579-0278) signed by an aquatic animal health expert, as 
defined in Sec.  622.102(a)(1)(xv), certifying that the fish have been 
inspected and are visibly healthy and the source population is test 
negative for OIE pathogens specific to the cultured species or 
pathogens identified as reportable pathogens in the NAAHP as 
implemented by the USDA and U.S. Departments of Commerce and Interior.
    (6) Use of drugs and other chemicals or agents. Use of drugs, 
pesticides, and biologics must comply with all applicable Food and Drug 
Administration (FDA), EPA, and USDA requirements (e.g., Federal, Food, 
Drug and Cosmetic Act, 21 U.S.C. 301 et seq.; Clean Water Act, 40 CFR 
part 122; 9 CFR parts 101 through 124; 21 CFR parts 500 through 599; 
and 40 CFR parts 150 through 189).
    (7) Feed practices and monitoring. The permittee must conduct feed 
monitoring and management practices in compliance with EPA regulations 
at 40 CFR 451.21, if applicable to the facility.
    (8) Monitoring and reporting compliance. The permittee must monitor 
and report the environmental assessment parameters at the aquaculture 
facility consistent with NMFS' guidelines that will be available on the 
SERO Web site and from the RA upon request. The permittee also must 
comply with all applicable monitoring and reporting requirements 
specified in their valid ACOE Section 10 permit and valid EPA NPDES 
permit.
    (9) Inspection for protected species. The permittee must regularly 
inspect allowable aquaculture systems, including mooring and anchor 
lines, for entanglements or interactions with marine mammals, protected 
species, and migratory birds. The frequency of inspections will be 
specified by NMFS as a condition of the permit. If entanglements or 
interactions are observed, they must be reported as specified in Sec.  
622.102(a)(1)(i)(G).
    (10) Fishing gear stowage requirement. Any vessel transporting

[[Page 51442]]

cultured animals to or from an aquaculture facility must stow fishing 
gear as follows:
    (i) A longline may be left on the drum if all gangions and hooks 
are disconnected and stowed below deck. Hooks cannot be baited. All 
buoys must be disconnected from the gear; however, buoys may remain on 
deck.
    (ii) A trawl net may remain on deck, but trawl doors must be 
disconnected from the trawl gear and must be secured.
    (iii) A gillnet must be left on the drum. Any additional gillnets 
not attached to the drum must be stowed below deck.
    (iv) A rod and reel must be removed from the rod holder and stowed 
securely on or below deck. Terminal gear (i.e., hook, leader, sinker, 
flasher, or bait) must be disconnected and stowed separately from the 
rod and reel. Sinkers must be disconnected from the down rigger and 
stowed separately.
    (v) All other fishing gear must be stored below deck or in an area 
where it is not normally used or readily available for fishing.
    (11) Prohibition of possession of wild fish in restricted access 
zone. Except for broodstock, authorized pursuant to paragraph (g)(16) 
of this section, possession of any wild fish at or within the 
boundaries of an aquaculture facility's restricted access zone is 
prohibited.
    (12) Prohibition of possession of wild fish aboard vessels, 
vehicles, or aircraft associated with aquaculture operations. 
Possession and transport of any wild fish aboard an aquaculture 
operation's transport or service vessels, vehicles, or aircraft is 
prohibited while engaged in aquaculture related activities, except when 
harvesting broodstock as authorized by NMFS.
    (13) Maintaining fish intact prior to landing. Cultured finfish 
must be maintained whole with heads and fins intact until landed on 
shore. Such fish may be eviscerated, gilled, and scaled, but must 
otherwise be maintained in a whole condition. Spiny lobster must be 
maintained whole with the tail intact until landed on shore.
    (14) Restriction on time of landing. Species cultured at an 
aquaculture facility can only be landed ashore between 6 a.m. and 6 
p.m., local time.
    (15) Bill of lading requirement. Any cultured fish harvested from 
an aquaculture facility and being transported must be accompanied by 
the applicable bill of lading through landing ashore and the first 
point of sale. The bill of lading must include species name, quantity 
in numbers or pounds by species, date and location of landing, Gulf 
aquaculture permit number of the aquaculture facility from which the 
fish were harvested, and name and address of purchaser.
    (16) Request to harvest broodstock. (i) At least 30 days prior to 
each time a permittee or their designee intends to harvest broodstock 
from the Gulf, including from state waters, that would be used to 
produce juvenile fish for an aquaculture facility in the Gulf EEZ, the 
permittee must submit a request to the RA via the SERO Web site using a 
Web-based form. The information submitted on the form must include the 
number, species, and size of fish to be harvested; methods, gear, and 
vessels (including USCG documentation or state registration number) to 
be used for capturing, holding, and transporting broodstock; date and 
specific location of intended harvest; and the location to which 
broodstock would be delivered.
    (ii) Allowable methods or gear used for broodstock capture in the 
EEZ include those identified for each respective fishery in Sec.  
600.725, except red drum, which may be harvested only with handline or 
rod and reel.
    (iii) The RA may deny or modify a request for broodstock harvest if 
allowable methods or gear are not proposed for use, the number of fish 
harvested for broodstock is more than necessary for purposes of 
spawning and rearing activities, or the harvest will be inconsistent 
with FMP objectives or other Federal laws. If a broodstock collection 
request is denied or modified, the RA will provide the determination 
and the basis for it, in writing to the permittee. If a broodstock 
collection request is approved, the permittee must submit a report to 
the RA including the number and species of broodstock harvested, their 
size (length and weight), and the geographic location where the 
broodstock were captured. The report must be submitted on a Web-based 
form available on the SERO Web site no later than 15 days after the 
date of harvest.
    (iv) Notwithstanding the requirements in Sec.  622.106(a)(16), all 
proposed harvest of broodstock from state waters also must comply with 
all state laws applicable to the harvest of such species.
    (17) Authorized access to aquaculture facilities. A permittee must 
provide NMFS employees and authorized officers access to an aquaculture 
facility to conduct inspections or sampling necessary to determine 
compliance with the applicable regulations relating to aquaculture in 
the Gulf EEZ. In conducting the inspections, NMFS may enter into 
cooperative agreements with States, may delegate the inspection 
authority to any State, or may contract with any non-Federal Government 
entities. As a condition of the permit, NMFS may also require the 
permittee to contract a non-Federal Government third party approved by 
the RA if the RA agrees to accept the third party inspection results. 
The non-Federal Government third party may not be the same entity as 
the permittee.
    (b) [Reserved]


Sec.  622.107  Limitation on aquaculture production.

    No individual, corporation, or other entity will be authorized to 
produce more than 12.8 million lb (5.8 million kg), round weight, of 
cultured species annually from permitted aquaculture facilities in the 
Gulf EEZ. Production of juvenile fish by a hatchery in the Gulf EEZ 
will not be counted toward this limitation because those fish would be 
accounted for subsequently via reported harvest at the aquaculture 
facility where grow out occurs.


Sec.  622.108  Remedial actions.

    (a) Potential remedial actions by NMFS. In addition to potential 
permit sanctions and denials in accordance with subpart D of 15 CFR 
part 904, NMFS may take the following actions, as warranted, to avoid 
or mitigate adverse impacts associated with aquaculture in the Gulf 
EEZ.
    (1) Actions to address pathogen episodes. NMFS, in cooperation with 
USDA's APHIS, may order movement restrictions and/or the removal of all 
cultured animals from an allowable aquaculture system upon confirmation 
by a USDA's APHIS reference laboratory that an OIE-reportable pathogen, 
or additional pathogens that are subsequently identified as reportable 
pathogens in the NAAHP exists and USDA's APHIS and NMFS determine the 
pathogen poses a significant threat to the health of wild or cultured 
aquatic organisms.
    (2) Actions to address genetic issues. NMFS may sample cultured 
animals to determine genetic lineage and, upon a determination that 
genetically modified or transgenic animals were used or possessed at an 
aquaculture facility, will order the removal of all cultured animals of 
the species for which such determination was made. In conducting the 
genetic testing to determine that all broodstock or progeny of such 
broodstock were originally harvested from U.S. waters of the Gulf, were 
from the same population or sub-population where the facility is 
located, and that juveniles stocked in cages or net pens are the 
progeny of wild broodstock, or other genetic testing necessary to carry

[[Page 51443]]

out the requirements of the FMP, NMFS may enter into cooperative 
agreements with States, may delegate the testing authority to any 
State, or may contract with any non-Federal Government entities. As a 
condition of the permit, NMFS may also require the permittee to 
contract a non-Federal Government third party approved by the RA if the 
RA agrees to accept the third party testing results. The non-Federal 
Government third party may not be the same entity as the permittee.
    (b) [Reserved]


Sec.  622.109  Adjustment of management measures.

    In accordance with the framework procedures of the FMP for 
Regulating Offshore Marine Aquaculture in the Gulf of Mexico, the RA 
may establish or modify the items in paragraph (a) of this section for 
offshore marine aquaculture.
    (a) For the entire aquaculture fishery: MSY, OY, permit application 
requirements, operational requirements and restrictions, including 
monitoring requirements, allowable aquaculture system requirements, 
siting requirements for aquaculture facilities, and recordkeeping and 
reporting requirements.
    (b) [Reserved]

[FR Doc. 2014-20407 Filed 8-27-14; 8:45 am]
BILLING CODE 3510-22-P