Fisheries of the Caribbean, Gulf, and South Atlantic; Aquaculture, 1761-1800 [2016-00147]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 81, Number 8 (Wednesday, January 13, 2016)]
[Rules and Regulations]
[Pages 1761-1800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-00147]



[[Page 1761]]

Vol. 81

Wednesday,

No. 8

January 13, 2016

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; 
Final Rule

Federal Register / Vol. 81 , No. 8 / Wednesday, January 13, 2016 / 
Rules and Regulations

[[Page 1762]]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 622

[Docket No. 080225276-5601-02]
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: Final rule.

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

SUMMARY: NMFS issues this final rule 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. This final rule establishes a comprehensive 
regulatory program for managing the development of an environmentally 
sound and economically sustainable aquaculture fishery in Federal 
waters of the Gulf of Mexico (Gulf), i.e., the Gulf exclusive economic 
zone (EEZ). The purpose of this final rule is to increase the yield of 
Federal fisheries in the Gulf by supplementing the harvest of wild 
caught species with cultured product.

DATES: This rule is effective February 12, 2016.

ADDRESSES: Electronic copies of the FMP, which includes a final 
programmatic environmental impact statement (FPEIS), a Regulatory 
Flexibility Act analysis (RFA), and a regulatory impact review, along 
with the supplement to the FPEIS (SFPEIS) and supplemental information 
report (SIR), may be obtained from the Southeast Regional Office's 
Aquaculture Web site (Web site) at https://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/aquaculture/.
    Comments regarding the burden-hour estimates, clarity of the 
instructions, or other aspects of the collection-of-information 
requirements contained in this final rule may be submitted in writing 
to Adam Bailey, Southeast Regional Office, NMFS, 263 13th Avenue South, 
St. Petersburg, FL 33701; or, the Office of Management and Budget, by 
email at OIRASubmission@omb.eop.gov, or by fax to 202-395-5806.

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

SUPPLEMENTARY INFORMATION: The aquaculture fishery in the Gulf is 
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).
    On June 4, 2009, NMFS published a notice of availability for the 
FMP and requested public comment (74 FR 26829). On September 3, 2009, 
the FMP entered into effect by operation of law. On that same date, 
NOAA announced that it would develop a new National Aquaculture Policy 
that would provide context for the FMP. On June 9, 2011, NOAA announced 
the release of the final National Aquaculture Policy and NOAA's 
intentions to move forward with rulemaking for the FMP. On August 28, 
2014, NMFS published a proposed rule for the FMP and requested public 
comment (79 FR 51424). The proposed rule and the FMP outline the 
rationale for the actions contained in this final rule. A summary of 
the actions implemented by this final rule is provided below.
    The FMP was developed under the authority of the Magnuson-Stevens 
Act to regulate aquaculture operations in the Gulf EEZ. The FMP 
provides a comprehensive framework for authorizing and regulating 
offshore aquaculture activities. The FMP also establishes a 
programmatic approach for evaluating the potential impacts of 
aquaculture operations in the Gulf.

Gulf Aquaculture Permits

    This final rule requires persons who want to conduct select 
aquaculture activities in the Gulf exclusive economic zone (EEZ) to 
apply for and obtain a Gulf aquaculture permit. This permit authorizes 
the operation of an offshore aquaculture facility in the Gulf EEZ and 
allows the sale of allowable aquaculture species cultured at an 
offshore aquaculture facility in the Gulf EEZ. Persons issued a Gulf 
aquaculture permit are 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 is limited to U.S. citizens and 
permanent resident aliens. Gulf aquaculture permits are transferable as 
long as the geographic location of the aquaculture facility site 
remains unchanged and all applicable permit requirements are satisfied 
and up-to-date at the time of transfer. The Gulf aquaculture permit is 
effective for 10 years and must be renewed in 5-year increments 
thereafter to remain valid. The initial permit application fee is 
$10,000, and a $1,000 fee is assessed annually, to cover the 
administrative costs of issuing permits and reviewing permit activities 
that are reported annually. The renewal application fee is $5,000. 
These fees are based on the NOAA Finance Handbook. A valid Gulf 
aquaculture permit must be prominently displayed and available at the 
aquaculture facility. An aquaculture facility is defined broadly at 50 
CFR part 622.2 as an installation of a 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 the authority of a Gulf 
aquaculture permit. For those parts of the aquaculture facility that 
are deployed in the water, the permit holder may choose to comply with 
the requirement to display the Gulf aquaculture permit by marking the 
gear with the permit number. A copy of a valid Gulf aquaculture permit 
signed by the permit owner must be in the possession of any person who 
possesses live wild broodstock of an allowable aquaculture species, or 
who possesses or transports cultured species in, to, or from an 
offshore aquaculture facility in the Gulf EEZ.
    A dealer who receives species cultured at an offshore aquaculture 
facility in the EEZ is 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 fee for a Gulf 
aquaculture dealer permit fee is $50.00 (if the person applies for a 
single permit) or $12.50 (if the person applies for the Gulf 
aquaculture dealer permit in conjunction with another type of permit) 
to cover the administrative costs of permit issuance. Dealer permits 
are 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 to be accomplished online; therefore, all permittees need access to 
a computer and the Internet to participate. NMFS will mail permittees 
information and instructions for setting up an online aquaculture 
account and using the online system, upon issuance of a Gulf

[[Page 1763]]

aquaculture permit or a Gulf aquaculture dealer permit. Assistance with 
online functions is available from the Permits Office, Monday through 
Friday between 8 a.m. and 4:30 p.m. eastern time.
    Additionally, the NMFS Southeast Regional Administrator (RA) will 
provide each aquaculture permittee with paper forms for complying with 
the basic reporting requirements of the aquaculture program when use of 
such forms is authorized during catastrophic conditions. The RA will 
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 will provide timely 
notice to affected participants and may authorize the affected 
participants' use of paper forms for the duration of the catastrophic 
conditions. Program functions are limited under the paper-based system. 
Assistance in complying with the requirements of the paper-based system 
is 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 Web site. Once online functions are 
available, participants must comply by using the online system unless 
alternative methods are specified.

Application Requirements

    Applications for a Gulf aquaculture permit are available from the 
RA or from the Web site. Applicants must complete and submit the 
application form and all required supporting documents to the RA at 
least 180 days prior to the date they desire the permit to be 
effective. Information required as part of the application package 
includes: Name of business, name of applicant, hatchery contact 
information, documentation of U.S. citizenship or resident alien 
status, a baseline environmental survey of the proposed site conducted 
consistent with the guidance specified by NMFS and available on the Web 
site, a description of the geographic location and dimensions of the 
aquaculture facility and site, a description of the equipment, 
aquaculture systems, and methods to be used for grow-out (time period 
from when an organism is stocked into offshore systems until it is 
harvested for market), a list of species to be cultured, estimated 
production levels of each species to be cultured, and a copy of an 
emergency disaster plan (an emergency plan in the event of a disaster).
    The applicant is required to obtain an assurance bond sufficient to 
cover the costs associated with removing all components of the 
aquaculture facility, including cultured animals, if permittees fail to 
do so when ordered by NMFS.
    The applicant is required to provide a document certifying that all 
broodstock or progeny of such broodstock will be or were originally 
harvested from U.S. waters of the Gulf, will be or were harvested from 
the same population or sub-population that occurs where the facility is 
located, and that no genetically engineered or transgenic animals will 
be used or possessed at the aquaculture facility. The purpose of these 
requirements is to ensure that the genetic make-up of cultured animals 
is similar to the wild stocks where the facility is located. As defined 
in Sec.  622.2 of this final rule, genetically engineered animals are 
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). Also defined in Sec.  622.2 of 
this final rule, transgenic animals are those whose genome contains a 
nucleotide sequence that has been intentionally modified in vitro, and 
the progeny of such an animal.
    The applicant is 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.''
    Prior to issuance of a Gulf aquaculture permit, permit applicants 
must provide NMFS a copy of valid Federal permits (e.g., Army Corps of 
Engineers (ACOE) Section 10 permit, and Environmental Protection Agency 
(EPA) National Pollutant Discharge Elimination System (NPDES) permit) 
and authorizations applicable to the proposed aquaculture site, 
facilities, or operations. Permit applicants do not need to provide 
copies of these valid Federal permits as part of their Gulf aquaculture 
permit application.

Public Comment Process Regarding Gulf Aquaculture Permit Applications

    After the RA has determined an application to be complete, NMFS 
will announce its receipt of the application in the Federal Register. 
The public will be provided up to 45 days to comment on the application 
and comments will be requested during public testimony at a Council 
meeting. The RA may consult with the Council on the permit application 
and will offer the applicant an opportunity to appear in support of the 
application at a Council meeting. After public comment ends and 
comments are reviewed, the RA will 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: The applicant 
fails to disclose material information or includes false statements of 
material facts; the RA determines that issuing the permit would pose 
significant risk to marine resources, public health, or safety, or 
conflict 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, or future 
geological and geophysical surveys; or the RA determines the 
application proposes activities that are 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 request.

Consultation With Other Federal Agencies

    The RA will consult with Federal agencies as appropriate, to 
address and resolve any conflicts regarding use of the OCS for 
aquaculture, with special emphasis on OCS energy programs for resolving 
and documenting the proposed solution of existing conflicts. 
Consultation will occur when working with potential permittees during 
the pre-application stage of the permit process and when evaluating 
potentially relevant conflicts or issues identified through the permit 
application review process. The RA will consult with Federal agencies, 
as appropriate, prior to making a decision to approve or deny a permit.

Operational Requirements, Monitoring Requirements, and Restrictions

    Permittees must 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 
reduce the potential for speculative entry into the fishery, permittees 
are required to place 25 percent of aquaculture systems approved for 
use at

[[Page 1764]]

a specific aquaculture facility in the water at the permitted site 
within 2 years of permit issuance, and to place cultured animals in 
aquaculture systems at the site within 3 years of permit issuance. 
Permittees may request a 1-year extension of these deadlines in the 
event of a catastrophe (e.g., hurricane). Failure to comply with any of 
the operational requirements, monitoring requirements, or restrictions 
is grounds for revocation of the permit.
    Fingerlings or other juvenile animals obtained for grow-out at an 
aquaculture facility in the EEZ must 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 must be certified by the hatchery owner as 
having been marked or tagged (e.g., dart or internal wire tag). Prior 
to stocking fish in approved aquaculture systems, the applicant must 
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 that the source population tests 
negative for World Organization of Animal Health (OIE) pathogens 
specific to the cultured species and for pathogens that are identified 
as reportable pathogens in the National Aquatic Animal Health Plan 
(NAAHP). This process must be repeated for each new stocking event.
    The use of biologics, pesticides, and drugs must comply with all 
applicable United States Department of Agriculture (USDA), EPA, and FDA 
requirements. Use of aquaculture feeds must be conducted in compliance 
with EPA feed monitoring and management guidelines (40 CFR 451.21). 
Applicants also must comply with all monitoring and reporting 
requirements specified in their EPA NPDES permit and their ACOE Section 
10 permit. Additionally, NMFS requires permittees to inspect 
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 are required to monitor and report baseline environmental 
survey data to NMFS in accordance with procedures specified by NMFS in 
guidance available on the Web site.
    The RA must approve all broodstock harvest activities before they 
occur. At least 30 days before the date permittees intend to harvest 
broodstock from the Gulf EEZ or Gulf state waters, the permittee or 
permittee's designee must submit a request for broodstock harvest to 
the RA. The request must include information on the number, size, and 
species to be harvested, the methods, gear, and vessels to be used for 
capturing, holding, and transporting broodstock, the date and specific 
location of the intended harvest, and the location where the broodstock 
will be delivered. Only gear and methods specified in 50 CFR 600.725 
for the respective fishery may be used for harvest--except that rod-
and-reel may be used to harvest red drum. The RA may deny a request to 
harvest broodstock if allowable methods or gear are not proposed for 
use, the number of broodstock is larger than necessary for spawning and 
rearing activities, or based on a determination the proposed activity 
is inconsistent with FMP objectives or Federal laws. The RA will 
provide the permittee a written determination regarding the approval or 
denial of the broodstock harvest request. If a broodstock harvest 
request is approved, the permittee will be required to submit a report 
to the RA within 15 days of the date of harvest summarizing the number, 
size, and species harvested, and identifying the location where the 
broodstock were captured.

Remedial Actions by NMFS

    Section 622.108 of this rule provides safeguards that address two 
specific concerns identified by the Council during development of the 
FMP: Pathogens and genetic issues.
    Section 622.108(a)(1) provides that 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 the APHIS reference laboratory that the cultured 
animals test positive for a reportable or emerging pathogen and pose a 
threat to the health of wild or cultured animals.
    Section 622.108(a)(2) provides that NMFS may sample cultured 
animals to determine genetic lineage. If cultured animals are 
determined to be genetically engineered or transgenic, then NMFS will 
order the removal of all cultured animals for which such determination 
applies. In conducting the genetic testing to determine that all 
broodstock or progeny of such broodstock are originally harvested from 
U.S. waters of the Gulf, are from the same population or sub-population 
that occurs where the facility is located, and that juveniles stocked 
in offshore systems 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 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 to conduct such genetic testing 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.
    In addition to the actions specified above, NMFS has the authority 
to issue emergency rules to address unforeseen events that present 
serious conservation or management problems. See 16 U.S.C. 1855(c); 
NMFS Policy Guidelines for the Use of Emergency Rules (62 FR 44421, 
August 21, 1997). An emergency rule is generally in effect for a 
limited time but could remain in effect for an extended period if the 
rule is responding to a public health issue or an oil spill. See 16 
U.S.C. 1855(c)(3)(C). If warranted under the circumstances, appropriate 
measures could also be established through an FMP amendment prepared by 
the Council, or by the Secretary of Commerce if the Council fails to 
develop such an amendment. Any measures established in an FMP amendment 
would remain in effect until modified. Additionally, in the event of a 
significant unexpected problem requiring urgent action to protect 
public health, interest, or safety, NMFS may consider withdrawing, 
suspending, revoking, or annulling a permit pursuant to the 
Administrative Procedure Act, 5 U.S.C. 558(c).

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

    Consistent with National Standard 1 of the Magnuson-Stevens Act and 
the National Standard 1 Guidelines, the FMP specifies biological 
reference points, status determination criteria, annual catch limits 
and accountability measures. The FMP establishes an annual catch limit 
(ACL) for offshore aquaculture in the Gulf EEZ of 64 million lb (29 
million kg), round weight, which is equal to optimum yield (OY) and 
maximum sustainable yield (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. Also, the 
FMP limits a person, corporation, or other entity from producing, 
annually, 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, to ensure entities do not obtain an excessive share of the ACL.
    If the total annual ACL is exceeded in a given year, NMFS will 
publish a control date in the Federal Register, and

[[Page 1765]]

entry into the aquaculture fishery may be limited or prohibited after 
that control date. The control date will serve as an accountability 
measure while the Council initiates review of the Gulf aquaculture 
program and biological reference points.
    The FMP recognizes that thresholds for determining overfishing and 
overfished status are used as proxies to assess the effect of the 
aquaculture fishery upon wild stocks. Thus, they are not directly 
applicable to the cultured fish but it is conceivable that some level 
of aquaculture in the Gulf could result in adverse impacts to wild 
stocks, which could result in overfishing and depletion of such stocks. 
Thus, the FMP also specifies overfished and overfishing criteria 
established in existing FMPs for wild stocks, consistent with the 
provisions at 50 CFR 600.310(d)(7). These thresholds are 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. If aquaculture operations are determined to cause 
such effects, then the Council and NMFS will take action(s) that could 
include, but is not limited to, reducing aquaculture production levels, 
removing cultured animals containing pathogens, and reevaluating 
facility siting locations to avoid habitat degradation.

Measures To Enhance Enforceability

    Permittees are required to provide NMFS personnel and authorized 
officers (as defined in 50 CFR 600.10) access to their aquaculture 
facilities and records 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 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 to conduct such inspections 
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 are allowed to 
offload cultured animals at aquaculture dealers only between 6 a.m. and 
6 p.m., local time. All fish landed on shore are required to be 
maintained whole with heads and fins intact. Spiny lobster are required 
to be maintained whole with tail intact until landed ashore. Any 
cultured animals harvested from an aquaculture facility and being 
transported are required to be accompanied by the applicable bill of 
lading through offloading and the first point of sale.
    Any person transporting cultured fingerlings or other juvenile 
animals from a hatchery to an aquaculture facility, other than from a 
hatchery that is integrated with an aquaculture facility, is required 
to notify NMFS at least 72 hours prior to transport. Permittees are 
also required to notify NMFS at least 72 hours prior to harvest of 
cultured animals at an aquaculture facility and notify NMFS at least 72 
hours prior to the intended time of landing. The harvest notification 
includes the time, date, and weight of cultured animals to be 
harvested. The landing notification includes the time, date, and port 
of landing. These notifications are required to be provided to NMFS by 
calling the telephone number or accessing the Web-based form on the Web 
site.
    Any vessel transporting cultured animals to or from an aquaculture 
facility is 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, is prohibited within the 
boundaries of an aquaculture facility's restricted access zone as 
specified in Sec.  622.104. Except when harvesting broodstock, the 
possession of wild fish aboard an aquaculture operation's transport and 
service vessels, vehicles, or aircraft is prohibited. Stowage 
requirements and possession restrictions 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 in a fishery management unit (FMU) under a current FMP, 
except those species in the shrimp and coral FMU's. As explained in the 
preamble to the proposed rule, prior to the FMP, offshore aquaculture 
in the Gulf EEZ, other than live rock aquaculture, could only be 
authorized by an exempted fishing permit (EFP) from NMFS. Anyone 
wishing to culture species in the Gulf EEZ that are not allowable 
aquaculture species as specified in the FMP and at Sec.  622.105(b) 
must apply for an EFP (see regulations at 50 CFR 600.745). Under the 
FMP, no genetically engineered or transgenic animals may be cultured in 
the Gulf.

Allowable Aquaculture Systems for Grow-Out

    Aquaculture systems used for growing fish will be evaluated and 
approved by the RA on a case-by-case basis. The structural integrity 
and ability of aquaculture systems to withstand physical stresses 
associated with major storm events (e.g., hurricanes) will be reviewed 
by the RA, using engineering analyses, computer and physical 
oceanographic models, or other required documentation. The RA will 
evaluate the potential risks of aquaculture systems to essential fish 
habitat (EFH), endangered or threatened species, marine mammals, wild 
fish stocks, public health, and safety. The RA will consider the 
significance of any such risks in determining whether to approve or 
deny an aquaculture system. If the RA denies use of an aquaculture 
system, then the applicant will be provided a written determination 
from the RA of such findings. Each aquaculture system approved for use 
must be marked with a minimum of one properly functioning locating 
device (e.g., global positioning system device) to assist in locating 
the system in the event it is damaged or lost. The U.S. Coast Guard 
(USCG) also requires structures to be marked with lights and signals to 
ensure compliance with private aids to navigation (33 CFR 66.01).

Siting Requirements and Conditions

    Aquaculture facilities are prohibited in Gulf EEZ marine protected 
areas, marine reserves, habitat areas of particular concern (HAPCs), 
Special Management Zones, permitted artificial reef areas, and coral 
areas specified in 50 CFR part 622. No aquaculture facility may be 
sited within 1.6 nm (3 km) of another aquaculture facility. Permit 
sites must be twice as large as the combined area encompassed by the 
approved aquaculture systems to allow for best management practices 
such as the rotation of systems for fallowing. The RA will evaluate 
proposed sites on a case-by-case basis. Siting criteria include but are 
not limited to the following: Results of the baseline environmental 
survey; site depth; frequency of harmful algal blooms or hypoxia; and 
location of the site relative to marine mammal migratory pathways, 
important natural habitats, and fishing grounds. The RA may deny use of 
a proposed aquaculture site based on a determination that the proposed 
site: Would pose significant risks to EFH, or to endangered or 
threatened species; would result in user conflicts with commercial or 
recreational fishermen or with other marine resource users; would

[[Page 1766]]

pose risk to the cultured species due to low dissolved oxygen or 
harmful algal blooms; is not of sufficient depth for the approved 
aquaculture system; is characterized by substrate and currents that 
would inhibit the dispersal of wastes and effluents; or is otherwise 
inconsistent with FMP objectives or applicable Federal laws.

Aquaculture Facility Restricted Access Zones

    A restricted access zone will be established for each facility. The 
boundaries of the restricted access zone correspond to the coordinates 
listed on the approved ACOE Section 10 permit for the site. Restricted 
access zone boundaries must 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 are allowed to operate in or 
transit through the restricted access zone.

Recordkeeping and Reporting Requirements

    Gulf aquaculture permittees are 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 must 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 
approved aquaculture system (e.g., one cage or one net pen) or 5 
percent or more of the fish from all approved aquaculture systems 
combined, or the escape, within any 30-day period, of 10 percent or 
more of the fish from all approved 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 is 
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 is required to provide to NMFS the contact and permit 
information for the facility at which the escapement occurred, the 
duration and location of escapement, the cause(s) of escapement, the 
quantity, size, and percent of fish that escaped, by species; and 
actions being taken to address the escapement and to prevent future 
escapements. If an entanglement or interaction occurs, the permittee is 
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 is 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 are required to report to NMFS if there is a change to the 
hatchery (or hatcheries) used for obtaining fingerlings or other 
juvenile animals. Permittees are also required to report, to other 
Federal agencies, the use of new animal drugs in accordance with 40 CFR 
451.3.
    For recordkeeping requirements, permittees must maintain and file 
with NMFS valid copies of all state and Federal permits required for 
conducting offshore aquaculture, as well as copies of state and Federal 
permits for each hatchery from which fingerlings or other juvenile 
animals are obtained. Also, aquaculture facilities must maintain the 
following records for the most recent 3-year period: Monitoring reports 
related to aquaculture activities required by state and Federal 
permits; daily records of fish introduced or removed from each 
aquaculture system; and original or copies of feed purchase invoices 
and sale records. These records must be provided to NMFS or authorized 
officers upon request.
    Aquaculture dealers are required to complete a landing transaction 
report when purchasing cultured animals from a Gulf aquaculture permit 
holder. The transaction report includes the date, time, and location of 
the transaction; the identities of the Gulf aquaculture permit holder, 
vessel transporting cultured animals 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, aquaculture system requirements, siting requirements, and 
recordkeeping and reporting requirements in accordance with the 
framework procedure in the FMP.

Comments and Responses

    NMFS received over 1,100 submissions from the public on 
Regulations.gov during the comment periods for the proposed rule and 
FMP. NMFS has identified 115 unique comments from the public 
submissions. These include comments responding to the eight issues NMFS 
identified in the public participation section of the proposed rule. 
Comments and responses on those eight issues are addressed in the 
Public Participation Comments section below.

Public Participation Comments

    Comment 1: NMFS requested public comment on the definition of 
``significant risk'' as it pertains to offshore aquaculture in the Gulf 
and whether it is a different standard than what is established under 
the Endangered Species Act (ESA) (this corresponds to issue 1 in the 
Public Participation section of the proposed rule). NMFS received 
several comments on this proposed definition. Several commenters stated 
the definition is adequate and another stated the threshold for denying 
permits under this definition should be increased, giving NMFS less 
discretion. In contrast, a few commenters requested the threshold for 
significant risk be lowered, thereby making it easier for NMFS to deny 
permit applications. One commenter also stated that ``significant 
risk'' is not defined in the ESA but the term has been interpreted in 
case law; specifically, Babbitt v. Sweet Home Chapter of Communities, 
515 U.S. 687 (1995), in which the Supreme Court ruled that actual harm 
must occur. Another commenter stated the term ``significant risk'' 
should focus on direct threats of actual harm, and not indirect, 
insignificant, discountable, or extremely unlikely harm.
    Response: After considering all of the comments received, NMFS has 
determined that a more moderate threshold for ESA-listed species should 
be included in the definition of ``significant risk.'' The proposed 
definition linked the ESA criterion to the jeopardy and adverse 
modification standards established in the ESA. In this final rule, NMFS 
adopts a revised definition that will provide the RA discretion to deny 
a Gulf aquaculture permit application or use of a proposed site or 
aquaculture system, or specify conditions for an aquaculture system, if 
it is determined to adversely affect ESA-listed species or their 
critical habitat.

[[Page 1767]]

    This revised definition is consistent with the original definition 
deemed by the Council in February 2013 and makes the ESA-related 
criterion in the definition consistent with those for marine mammals, 
EFH, wild fish stocks and public health and safety. This revised 
definition recognizes that ``significant risk'' means more than 
insignificant or discountable (extremely unlikely) harm, but that 
activities may present a ``significant risk'' even if they fall short 
of jeopardizing the continued existence of an entire species or 
destroying or adversely modifying their critical habitat.
    NMFS does not agree that the Sweet Home decision is relevant to the 
definition of ``significant risk'' in this rule. That decision focused 
on whether the regulatory definition of ``harm,'' which included 
``significant habitat modification or degradation,'' was reasonable and 
within the Department of the Interior's authority.
    Comment 2: NMFS requested public comment on 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 FDA (this corresponds to issue 2 in the Public 
Participation section of the proposed rule). NMFS also requested public 
comment on whether the definition of ``genetically modified organism'' 
should be removed and a definition for ``genetically engineered 
animal'' should be added to the rule, which is more consistent with the 
definition used by FDA (this corresponds to issue 3 in the Public 
Participation section of the proposed rule). NMFS received several 
comments supporting these changes, one of which stated that this would 
result in uniformity across Federal agencies. Another commenter opposed 
these changes and supported the original terms and definitions, which 
they felt were more restrictive.
    Response: After considering these comments, NMFS is changing the 
term ``genetically modified organism'' to ``genetically engineered 
animal'' in this final rule as this is a more scientifically precise 
term, more accurately describes the use of modern biotechnology, and is 
consistent with FDA terminology.
    NMFS is also adopting the FDA definition for ``genetically 
engineered animal,'' which is defined 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 (number of sets of chromosomes in its cells) has been changed 
(e.g., a triploid animal (an animal with an extra set of chromosomes in 
its cells)) 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.
    Comment 3: NMFS requested public comment on whether it would be 
sufficiently protective to require broodstock to be collected from 
another population within the Gulf, rather than the same population or 
sub-population that occurs where the facility is located. NMFS also 
asked the public to provide comment on any additional costs or burdens 
this requirement would pose on aquaculture facilities (this corresponds 
to issue 4 in the Public Participation section of the proposed rule). 
NMFS received several comments which agreed that NMFS should keep the 
requirement to harvest broodstock from the same population or 
subpopulation where the facility is located. NMFS received comments 
that this requirement would be an impediment to selective breeding and 
the selection of traits that render individuals less fit to survive in 
the wild.
    Response: NMFS has determined that it is appropriate to keep the 
requirement to collect broodstock from the same population or 
subpopulation where the facility is located. The purpose of this 
requirement is to ensure that the genetic make-up of cultured animals 
is similar to that of the wild stocks where the facility is located. 
This is important to eliminate the potential for out-breeding 
depression caused by escaped fish interbreeding with fish from the 
local wild stock should escapement occur.
    The extent to which there are population differences in genotypes 
among potential farmed species in the Gulf varies by species. 
Scientific information available for species likely to be cultured in 
the Gulf EEZ (cobia, almaco jack, red drum, red snapper) indicates that 
red snapper and red drum should be collected within a 62 and 82 mile 
(100 and 132 km), respectively, radius of the location of the offshore 
aquaculture facility, while cobia and almaco jack may be collected from 
anywhere within the Gulf in order to maintain the genetic integrity of 
those populations. Due to these large collection ranges, NMFS has 
determined that this requirement does not pose an additional burden on 
aquaculture operators.
    NMFS does not agree that the FMP requirement that broodstock be 
from the same population or subpopulation where the aquaculture 
facility is located is an impediment to selective breeding as this 
requirement does not directly address selective breeding practices. 
NMFS is developing guidance which will address selective breeding 
practices which will afford sufficient protections to wild stocks, 
should escapement occur. NMFS is also developing tools (e.g., Offshore 
Mariculture Escapes Genetics Assessment (OMEGA) model) which will allow 
industry and regulators to objectively evaluate the potential genetic 
risk(s) posed by cultured escapees.
    Therefore, NMFS has not made any changes to this requirement.
    Comment 4: NMFS requested public comment regarding whether it is 
necessary for facilities to provide a Notice of Harvest to NMFS 72 
hours prior to harvesting cultured animals to ensure that only cultured 
animals are landed (this corresponds to issue 5 in the Public 
Participation section of the proposed rule). NMFS received several 
comments opposing the requirement to notify NMFS 72 hours prior to 
harvesting. These comments indicated that this requirement would be 
burdensome as harvesting may occur on a daily basis and weather 
conditions and other factors may impact harvest schedules.
    Response: NMFS has determined that it is appropriate to require the 
Notice of Harvest. The 72-hour notification window is intended to aid 
law enforcement and NMFS staff by allowing them the opportunity to be 
present at a facility when harvesting occurs to verify that permittees 
are harvesting only cultured species (e.g., through genetic testing) 
and that they remain within their production cap. Permittees can 
provide notification to NMFS either by phone or web-based form and may 
use this same method to provide updates on harvest times, etc. should 
inclement weather or other circumstances arise. This requirement was 
contained in the FMP and the preamble to the proposed rule and NMFS is 
adding it to the regulations in this final rule.
    Comment 5: NMFS requested public comment on 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 
approved aquaculture system, including mortalities. In addition, NMFS 
requested public comment on the extent to which this information aids 
enforcement of production quotas and

[[Page 1768]]

auditing (this corresponds to issue 6 in the Public Participation 
section of the proposed rule). NMFS received one comment requesting 
that this requirement be maintained for enforcement purposes. NMFS did 
not receive any comments opposing this requirement.
    Response: NMFS has determined that this requirement is necessary to 
provide the data needed to effectively enforce individual production 
quotas and for auditing purposes. This type of recordkeeping is 
standard practice in the aquaculture industry and therefore no 
additional costs are anticipated. Therefore, NMFS has not made any 
changes to this requirement.
    Comment 6: NMFS requested public comment on the practical utility 
and additional cost of the 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) (this corresponds to issue 7 in the 
Public Participation section of the proposed rule). NMFS received one 
comment related to this issue which urged NMFS to maintain strict 
record-keeping requirements.
    Response: NMFS has determined that it's appropriate to require that 
permittees maintain original or copies of invoices for feed for 3 years 
from the date of purchase. This requirement will assist NMFS and the 
EPA in the event that water quality problems arise as a result of the 
type of feed being used. Further, the EPA regulations (40 CFR 
451.21(g)(1)) only require that NPDES permittees maintain records 
documenting the feed amounts while NMFS' requirement will provide 
information on the type of feed purchased as well as require permittees 
keep this information for 3 years. NMFS does not anticipate this 
requirement will result in additional costs to the applicant as the 
applicant will receive this information as part of their normal 
business activity. This requirement was contained in the preamble to 
the proposed rule and NMFS is adding it to the regulations in this 
final rule.
    Comment 7: NMFS requested public comment on the draft SIR which was 
prepared to evaluate whether there is a need for supplemental National 
Environmental Policy Act (NEPA) analysis on the FMP, specific to the 
passage of time (i.e., since 2009). In the proposed rule, NMFS stated 
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 FPEIS for 
the FMP (this corresponds to issue 8 in the Public Participation 
section of the proposed rule). NMFS received several comments 
supporting the SIR's conclusion that that there are no substantial 
changes to the proposed action or significant new circumstances or 
information that require the preparation of additional supplemental 
NEPA analyses. NMFS also received several comments which stated the SIR 
was inadequate and that the 2009 FMP/FPEIS should be supplemented. Some 
of these commenters also stated that the supplemental NEPA document 
should also analyze the effects of the Deepwater Horizon MC252 oil 
spill on the affected environment in the Gulf.
    Response: On June 26, 2009, NMFS noticed in the Federal Register 
the availability of the FPEIS for the FMP (74 FR 30569). The Deepwater 
Horizon MC252 oil spill occurred on April 20, 2010, and was 
successfully capped on July 15, 2010. On January 25, 2013, NMFS noticed 
in the Federal Register its intent to supplement the FPEIS (SFPEIS) to 
consider potential changes to the environment linked to the Deepwater 
Horizon oil spill and determine if and how such changes may affect the 
actions and alternatives analyzed in the FMP/FPEIS (78 FR 5403). NMFS 
noticed the availability of the draft SFPEIS in the Federal Register on 
February 28, 2014 (79 FR 11428), and published the notice of 
availability of the final SFPEIS on July 2, 2015 (80 FR 38199).
    The comments which stated the SIR was inadequate and the 2009 FMP/
FPEIS should be further supplemented did not identify any new 
circumstances, information or impacts that are uncertain or that differ 
from those described in the FMP/FPEIS and SFPEIS. NMFS determined that 
no new or additional supplemental NEPA analysis is necessary, and 
finalized the SIR on July 6, 2015. The FPEIS, SFPEIS and SIR can be 
found on the Web site.

General Comments

    Comment 8: There is no support in the Magnuson-Stevens Act for 
NMFS's interpretation that Congress intended the term ``fishing,'' and 
thus the term ``harvesting,'' to include the culture of fish.
    Response: NMFS disagrees. As discussed in the preamble to the 
proposed rule, it has been NOAA's long-standing interpretation that the 
Magnuson-Stevens Act provides NMFS the authority to regulate 
aquaculture as ``fishing'' and, thus, that regional fishery management 
councils have the authority to prepare fishery management plans 
covering all aspects of aquaculture in EEZ waters under their 
respective jurisdictions. NMFS also, long ago, implemented the 
Council's Coral FMP, which includes provisions for the aquaculture of 
``live rock,'' and remains in effect currently.
    This interpretation is based on the Magnuson-Stevens Act 
definitions of the terms ``fishery'' (16 U.S.C. 1802(13)), ``stock of 
fish'' (16 U.S.C. 1802(42)), and ``fishing'' (16 U.S.C. 1802(16)). 
Because the Act does not define the term ``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, because 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, NMFS has 
determined there is 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 (e.g., stocking 
and growing fish in offshore systems) at sea that are integral to 
aquaculture operations.
    Comment 9: Neither NMFS nor the Council have authority to develop a 
permitting regime for aquaculture facilities, because such facilities 
are neither ``fishing vessels'' under the Magnuson-Stevens Act, nor are 
they ``vessels'' under 1 U.S.C. 3.
    Response: NMFS disagrees the Council lacks the authority to permit 
aquaculture facilities in the Gulf EEZ. Contrary to the statement in 
the comment, the Gulf aquaculture permit is not limited to permitting 
the facility. Under Sec.  622.101(a) and (c) of this final rule, a Gulf 
aquaculture permit is necessary to deploy the gear, operate the 
facility, sell or attempt to sell cultured species, possess or transfer 
fish in or from the Gulf EEZ, operate any vessels, vehicle, or aircraft 
in support of the aquaculture activity, and harvest and retain on board 
a vessel live wild broodstock. Therefore, the permit applies to fishing 
vessels, gear (the

[[Page 1769]]

aquaculture systems), and other fundamental aspects of the fishery.
    The Magnuson-Stevens Act allows the Council to require a permit 
with respect to any fishing vessel (section 303(b)(1)), to prohibit, 
limit, condition, or require the use of specified types and quantities 
of fishing gear (section 303(b)(4)), and to ``prescribe such other 
measures, requirements, or conditions and restrictions as are 
determined to be necessary and appropriate for the conservation and 
management of the fishery'' (section 303(b)(14)). Together, these 
provisions provide the Council the authority to require a permit to 
engage in aquaculture in the Gulf EEZ.
    Comment 10: NMFS should disapprove the rule because it was 
submitted in 2013 and not simultaneously with the FMP in 2009.
    Response: The Council submitted proposed regulations in 2009 at the 
same time as the FMP. However, before NMFS published the proposed rule, 
additional language was added to the regulations. The Council reviewed 
these changes in February 2013 and deemed those changes as necessary 
and appropriate for purposes of implementing the FMP. NMFS has 
determined that this procedure was consistent with the requirements of 
the Magnuson-Stevens Act.
    Comment 11: The FMP, which entered into effect in September 2009 is 
unlawful because it contains significant differences from the version 
approved by the Council in January 2009, therefore, the Secretary 
cannot lawfully implement the FMP.
    Response: NMFS disagrees that the editorial changes made to the FMP 
between the time it was approved by the Council and took effect were 
significant or render the FMP unlawful. The Council, when approving the 
FMP, was aware that staff would have usual editorial license to correct 
errors and make non-substantive changes to language in the FMP to 
improve the readability of the document. Thus, consistent with this 
understanding, NMFS and Council staff made several editorial changes to 
the FMP following Council approval in January 2009, but no substantive 
changes were made prior to the Council's formal submission of the FMP 
to the Secretary of Commerce for review.
    Comment 12: The proposed rule is inconsistent with the Magnuson-
Stevens Act because it does not contain a link to the final FMP, which 
includes changes deemed by the Council in February 2013. In addition, 
the proposed rule failed to provide a list of the technical changes 
that the Secretary made to the FMP.
    Response: The proposed rule did contain a link to the final FMP in 
the ADDRESSES section. No changes were made to the final FMP after it 
was transmitted to the Secretary of Commerce for review and 
implementation. Since the FMP was finalized, NMFS made several changes 
to the proposed regulations. These changes clarified the existing FMP 
requirements but did not change the substantive requirements of the 
FMP. In February 2013, the Council reviewed and deemed these changes as 
necessary and appropriate to carry out the actions in the FMP/FPEIS.
    Comment 13: The Secretary acted outside of his authority under the 
Magnuson-Stevens Act by allowing the FMP to enter into effect by 
operation of law, because the FMP fails to demonstrate that it is 
necessary for the conservation and management of Gulf fisheries. 
Another commenter stated the Council acted outside its authority when 
preparing the FMP for the same reason.
    Response: NMFS disagrees. Section 304 of the Magnuson-Stevens Act 
specifies that ``If the Secretary does not notify a Council within 30 
days of the end of the comment period of the approval, disapproval, or 
partial approval of a plan or amendment, then such plan or amendment 
shall take effect as if approved.'' Because the Secretary did not take 
action at the end of the comment period, the FMP entered into effect by 
operation of law, rather than through Secretarial action. This was the 
reasoning the Court applied when it ruled, in litigation brought after 
the FMP took effect by operation of law, which included the arguments 
contained in this comment, there was no final agency action. See the 
response to Comment 8, above, with respect to the authority to manage 
aquaculture as fishing under the Magnuson-Stevens Act.
    Comment 14: The Council and NMFS have failed to evaluate whether 
the FMP is consistent with NOAA's 2011 Marine Aquaculture Policy.
    Response: NMFS disagrees. In June 2011, NMFS completed an internal 
consistency analysis, which found that the FMP is consistent with 
NOAA's 2011 Marine Aquaculture Policy. A copy of this analysis can be 
found on the Web site.
    Comment 15: The FMP and proposed rule violate the Public Trust 
Doctrine by authorizing NMFS to confer exclusive property rights for 
use in aquaculture.
    Response: NMFS disagrees. The public trust doctrine is not 
implicated by the FMP or the implementing regulations, which NMFS has 
determined are consistent with the Magnuson-Stevens Act and other 
applicable law. Further, the FMP and rule do not authorize NMFS to 
confer exclusive property rights for use in aquaculture. A Gulf 
aquaculture permit only authorizes the use of a particular site for the 
duration of the permit and may be revoked, suspended, or modified 
pursuant to enforcement proceedings under subpart D of 15 CFR part 904.
    Comment 16: The final rule should outline specific parameters for 
the baseline environmental survey (formerly referred to as the baseline 
environmental assessment).
    Response: NMFS is currently working with other Federal permitting 
agencies to develop guidance for the baseline environmental survey. 
This document will be made available on the Web site when the rule 
becomes effective. Potential applicants are encouraged to contact NMFS 
and other Federal regulatory agencies early in the permit application 
process with any questions about the guidance document.
    Comment 17: NOAA's 2011 Marine Aquaculture Policy mentions the 
culture of non-native species may be possible if the best available 
science demonstrates it would not cause undue harm and this option 
should also be allowed in this rule. The rule should also allow culture 
of species with lesser levels of environmental impact, such as native 
shellfish, and encourage the use of multi-trophic aquaculture systems 
which use plants.
    Response: NMFS disagrees that the culture of non-native species 
should be allowed. The Council considered an alternative that would 
have allowed the culture of any species, including those that are non-
native to the Gulf (Action 4). However, the Council's Ad Hoc 
Aquaculture Advisory Panel opposed the use of non-native species for 
aquaculture. As explained in the FMP, if non-native species were 
allowed to be cultured in the Gulf EEZ and some escaped, this could 
have negative environmental impacts by introducing competition with 
wild stocks, changing community structure and food web dynamics, and 
modifying genetic structure if mating occurred with wild stocks. For 
this reason, the Council determined, and NMFS agrees, that it is 
appropriate to prohibit the culture of non-native species in the FMP.
    With respect to the culture of shellfish and plants, plants are not 
managed by the Council and are therefore not included in the list of 
species allowed for culture under this rule. The Council does manage 
shrimp but excluded shrimp from the allowable species, because the 
Council did not expect

[[Page 1770]]

offshore aquaculture of shrimp to be cost effective. The only other 
shellfish species that is managed by the Council and could be cultured 
under the FMP is spiny lobster. Multi-trophic aquaculture systems that 
use allowable species are encouraged.
    Comment 18: NMFS failed to comply with the National Marine 
Sanctuaries Act, which requires consultation when an agency action, 
whether internal or external to a national marine sanctuary, is likely 
to destroy, cause the loss of, or injure any sanctuary resources. 
Because the FMP and rule do not prohibit offshore aquaculture in or 
adjacent to designated marine sanctuaries and offshore aquaculture is 
likely to result in significant harm to the Gulf Coast environment, 
NMFS was required to consult with the Office of National Marine 
Sanctuaries and failed to do so.
    Response: NMFS disagrees that consultation under the National 
Marine Sanctuaries Act is necessary. The Council considered prohibiting 
offshore marine aquaculture in marine sanctuaries, but ultimately 
rejected this alternative so that each marine sanctuary can evaluate 
whether marine offshore aquaculture is compatible with their management 
plan. This will allow individual consideration of proposed sites and an 
evaluation by the experts in the Office of National Marine Sanctuaries 
to determine whether the activity can be permitted under the applicable 
provisions of the National Marine Sanctuaries Act and the sanctuary 
regulations. During the permit review and approval process, the RA will 
also evaluate any proposed site that is adjacent to a marine sanctuary, 
as required under Sec.  622.103(a)(4), and will consult with the Office 
of National Marine Sanctuaries if appropriate.
    Comment 19: NMFS missed statutory deadlines when publishing the 
notice of availability for the FMP. Therefore, the Council and NMFS 
must reinitiate the rulemaking process and properly follow the 
statutory timelines.
    Response: The transmittal date for the FMP was May 29, 2009, and 
the notice of availability published on June 4, 2009. This publication 
schedule is consistent with the timelines set out in Sec.  304(a) of 
the Magnuson-Stevens Act.
    Comment 20: Offshore aquaculture regulations promulgated in the 
Gulf should apply to all U.S. EEZ waters.
    Response: Neither the Council nor NMFS has the authority under the 
Magnuson-Stevens Act to require that the regulations in this final rule 
apply to all U.S. EEZ waters. The Magnuson-Stevens Act established 8 
regional fishery management Councils that have specified jurisdictions. 
The FMP was developed by the Council and implemented by NMFS to 
regulate offshore aquaculture in the Gulf EEZ. Other Councils may 
decide to develop their own regulations for offshore aquaculture in EEZ 
waters under their jurisdiction.
    Comment 21: The definitions of ``aquaculture'' and ``aquaculture 
facility'' in the rule refer to ``propagation and rearing'' which would 
require both activities to be conducted to qualify as an aquaculture 
activity. This should be changed to make it clear that an activity is 
``aquaculture'' under this rule if it involves either propagation or 
rearing.
    Response: NMFS agrees that using the phrase ``propagation and 
rearing'' could be interpreted to require both activities. Therefore, 
NMFS has changed the phrase ``propagation and rearing'' in the 
definition of ``aquaculture'' to the phrase ``propagation or rearing''. 
In addition, NMFS has changed the phrase ``hold, propagate, and rear'' 
in the definition of ``aquaculture facility'' to the phrase ``hold, 
propagate, or rear'' for the same reasons.
    Comment 22: The proposed rule is inconsistent with the FMP as it 
omits ``same population or subpopulation'' in Sec.  
622.101(a)(2)(xiii).
    Response: NMFS resolved the inconsistency by adding that language 
to Sec.  622.101(a)(2)(xiii) of this final rule. The language was 
contained in the FMP and discussed in the preamble of the proposed 
rule, however, it was not included in the proposed codified text. Based 
on public comment, NMFS determined this should be added to the 
regulations in this final rule.
    Comment 23: Stocking densities in offshore aquaculture systems 
should be limited to levels that do not harm marine ecosystems.
    Response: NMFS does not specify stocking limits for offshore 
aquaculture systems. However, NMFS will consider site size, location, 
baseline environmental survey data as well as the amount of animals 
cultured at each site when reviewing permit applications. NMFS may deny 
a permit or a particular site if it would pose significant risks to 
marine resources.
    Comment 24: The FMP should specify a strategy for regulating the 
occupational safety and health of those employed by offshore 
aquaculture operations, and provide a mechanism to monitor workplace 
conditions and health outcomes.
    Response: The U.S. Department of Labor's Occupational Safety and 
Health Administration is the main Federal agency charged with setting 
and enforcing standards under the Occupational Safety and Health Act of 
1970. Thus, issues related to the occupational safety and health of 
those employed by offshore aquaculture operations are outside NMFS' 
jurisdiction and the scope of this rulemaking, and not addressed here.

National Standards

    Comment 25: The FMP fails to meet the requirements of National 
Standard 1 of the Magnuson-Stevens Act because the definition of MSY 
for cultured species in the FMP is impermissible and because neither 
the FMP nor regulations demonstrate how the aquaculture permitting 
program will reduce fishing mortality and increase OY. To the contrary, 
the FMP might increase mortality from spread of disease and increase 
the catch of prey species to feed captive fish.
    Response: NMFS disagrees. National Standard 1 requires conservation 
and management measures to prevent overfishing while achieving, on a 
continuing basis, the OY from the fishery (16 U.S.C. 1851(a)(1)). NMFS' 
implementing guidelines at 50 CFR 600.310 set out standard approaches 
for specifying MSY, OY and other parameters to be used in assessing the 
performance of fisheries relative to this mandate, but also recognize 
there may be circumstances, including harvests from aquaculture 
operations, which do not fit the standard approaches. In those 
circumstances, the guidelines provide the councils flexibility to 
propose alternative approaches for satisfying the National Standard 1 
requirements.
    Sections 4 and 6 of the FMP explain and analyze the alternative 
approaches the Council considered to meet the National Standard 1 
mandate. Since aquaculture is essentially a farming operation, all 
animals cultured are intended for harvest and there is no need to leave 
cultured animals in aquaculture systems to support future generations 
and guard against long-term depletion. However, it is conceivable that 
some level of aquaculture in the Gulf could adversely impact wild 
stocks or the marine environment. Therefore, the Council determined, 
and NMFS agrees, the most logical approach is to define management 
reference points and status determination criteria for the aquaculture 
fishery in a way that is intended to constrain production below that 
critical threshold level until we obtain more information about the 
environmental impacts of aquaculture and the production capacity of the 
Gulf.
    The resulting MSY and OY specified in the FMP will increase the 
seafood production potential of wild stocks, their contributions to 
national, regional,

[[Page 1771]]

and local economies, and their capacity to meet the Nation's 
nutritional needs. The FMP's reliance on existing overfished and 
overfishing criteria established in FMPs for wild stocks will help to 
ensure offshore aquaculture, including broodstock harvest operations, 
in the Gulf EEZ does not adversely affect wild stocks by spreading 
disease or other factors, causing them to undergo overfishing or become 
overfished.
    Comment 26: The FMP violates the allocation requirements of 
National Standard 4 of the Magnuson-Stevens Act.
    Response: NMFS disagrees. National Standard 4 states that, if it 
becomes necessary to allocate or assign fishing privileges among 
various U.S. fishermen, such allocation shall be (1) fair and equitable 
to all such fishermen; (2) reasonably calculated to promote 
conservation; and (3) carried out in such manner that no particular 
individual, corporation, or other entity acquires an excessive share of 
such privileges (16 U.S.C. 1851(a)(4)).
    NMFS' implementing guidelines at 50 CFR 600.325(c) define an 
``allocation'' or ``assignment'' of fishing privileges as a direct and 
deliberate distribution of the opportunity to participate in a fishery 
among identifiable, discrete user groups or individuals. The guidelines 
also state that, to be fair and equitable, any allocation should be 
rationally connected to the achievement of OY; to promote conservation, 
allocations may encourage a rational, more easily managed use of the 
resource; and, to avoid excessive shares, allocations must be designed 
to deter any person or other entity from acquiring an excessive share 
of fishing privileges.
    The FMP provides that all U.S. citizens and permanent resident 
aliens are eligible to apply for a Gulf aquaculture permit. The only 
factors limiting participation are permitting requirements, which apply 
equally to all applicants, and a maximum annual production cap. The 
maximum annual production cap is intended to promote conservation by 
helping to responsibly manage the development of the offshore 
aquaculture industry while we obtain more information about the number 
and size of aquaculture operations, the production capacity of various 
aquaculture systems, and the environmental impacts and economic 
sustainability of aquaculture. Also, the FMP limits persons, 
corporations, and other entities from producing, annually, more than 20 
percent of the production cap to prevent any one entity from obtaining 
an excessive share of fishing privileges, and inordinate control by 
buyers and sellers that would not otherwise exist.
    Comment 27: The FMP fails to meet the requirements of National 
Standard 5 of the Magnuson-Stevens Act because neither the FMP nor the 
implementing regulations address a serious management or conservation 
purpose. Rather, the real purpose of the FMP and implementing 
regulations is economic allocation (i.e., the transfer of fishing 
rights to aquaculturists).
    Response: NMFS disagrees with this interpretation of National 
Standard 5, which requires conservation and management measures to 
promote efficiency in the use of fishery resources, where practicable, 
except that no such measure will have economic allocation as its sole 
purpose (16 U.S.C. 1851(a)(5)).
    Even so, the conservation and management need for the FMP is 
articulated in the primary goal, which is to increase the MSY and OY of 
Federal fisheries in the Gulf by supplementing the harvest of wild 
caught species with cultured product. As explained in the FMP, 
supplementing the harvest of domestic fisheries with cultured product 
will help the U.S. to meet consumers' growing demand for seafood and 
may reduce the Nation's dependence on seafood imports. The MSY and OY 
of each Council-managed fishery are currently limited by each 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.
    Further, the FMP does not authorize NMFS to confer exclusive 
property rights for use in aquaculture. A Gulf aquaculture permit only 
authorizes the use of a particular site for the duration of a permit 
and may be revoked, suspended, or modified pursuant to enforcement 
proceedings under subpart D of 15 CFR part 904.
    Comment 28: The FMP violates National Standard 8 of the Magnuson-
Stevens Act because it fails to take into account the importance of 
fishery resources to fishing communities, and does not, to the extent 
practicable, minimize adverse economic impacts on such communities. The 
plan does not demonstrate that offshore aquaculture will prevent 
overfishing or rebuild fisheries and is almost certain to adversely 
impact fishing communities.
    Response: NMFS disagrees. National Standard 8 provides that 
conservation and management measures shall, consistent with the 
conservation requirements of the Magnuson-Stevens Act (including the 
prevention of overfishing and rebuilding of overfished stocks), take 
into account the importance of fishery resources to fishing communities 
to (A) provide for the sustained participation of such communities, and 
(B) to the extent practicable, minimize adverse economic impacts on 
such communities (16 U.S.C. 1851(a)(8)).
    The Gulf fishing communities potentially affected by this action 
are extensively described in the Gulf Council's 2004 and 2005 EFH 
Environmental Impact Statements (EISs), and the permitting, 
operational, monitoring, and reporting requirements of the FMP are 
designed to achieve the conservation objectives of the FMP and the 
Magnuson-Stevens Act (including preventing overfishing and rebuilding 
overfished wild stocks), while minimizing adverse economic impacts on 
those communities to the extent practicable.
    The potential impacts of the FMP on fishing communities are 
discussed in Sections 4, 5.4, 6, 7, and 8 of the FMP. Depending on the 
extent to which aquaculture products compete with landings from 
domestic fisheries, fishing communities could experience adverse 
effects, such as loss of jobs and revenue due to decreased prices. 
However, if the aquaculture products are primarily bound for export 
with little to no impact on domestic supply of traditionally landed 
species, fishing communities, especially dealers and processors, could 
benefit from increased jobs and revenues. Moreover, if domestic 
aquaculture products compete with imports of aquaculture product, there 
could be a decrease in imported seafood and simultaneously an increase 
in economic benefits that derive from an increase in net exports. 
However, the likelihood of net beneficial or adverse impacts occurring 
would depend on the relative prices, quality and quantity of 
aquaculture product, and many other factors influencing domestic and 
international market demand of both farmed and wild-caught species.
    Since aquaculture is essentially a farming operation, all animals 
cultured are intended for harvest and cannot undergo overfishing or 
become overfished. Offshore aquaculture may help reduce fishing 
mortality on wild stocks by providing an alternate source of food and 
relieving some fishing pressure on wild stocks.
    Comment 29: The FMP fails to meet the requirements of National 
Standard 9 of the Magnuson-Stevens Act because it

[[Page 1772]]

fails to adequately discuss bycatch and because it attempts to limit 
bycatch through NMFS evaluation of the aquaculture system and reporting 
requirements rather than requiring NMFS to reject aquaculture systems 
with the highest potential for bycatch and authorizing the agency to 
revoke or modify permits of those facilities that have high levels of 
bycatch.
    Response: NMFS disagrees. National Standard 9 requires conservation 
and management measures that, to the extent practicable, (A) minimize 
bycatch and (B) to the extent bycatch cannot be avoided, minimize the 
mortality of such bycatch (16 U.S.C. 1851(a)(9)). The FMP and this 
final rule contain a number of measures aimed at minimizing the bycatch 
of aquaculture operations to the extent practicable.
    The RA is required to review proposed aquaculture systems on a 
case-specific basis and may deny the use of a system if it poses 
significant risk to endangered or threatened species, marine mammals, 
other marine resources, and is otherwise inconsistent with National 
Standard 9 or other applicable Federal law.
    This final rule will allow NMFS to minimize any potential adverse 
impacts of broodstock collection by requiring permittees to obtain the 
RA's approval prior to each collection event. Collection requests must 
include information on the number, size, and species to be harvested, 
the methods, gear, and vessels to be used for capturing, holding, and 
transporting broodstock, the date and specific location of the intended 
harvest, and the location where the broodstock will be delivered. The 
RA may deny a request to harvest broodstock if allowable methods or 
gear are not proposed for use, the number of broodstock is larger than 
necessary for spawning and rearing activities, or if the proposed 
activity is otherwise inconsistent with National Standard 9 or other 
Federal law.
    Also, permittees are required to inspect aquaculture systems for 
entanglements and interactions with marine mammals, protected species, 
and migratory birds at a frequency specified as a condition of their 
permit, and to report any entanglements or other interactions to NMFS.

NEPA Analyses

    Comment 30: The SFPEIS violates NEPA because it was not presented 
to the Council, did not inform the Council's decision to approve the 
FMP, lacked meaningful public input, fails to include and assess 
substantive changes NMFS made to the FMP, and was not finalized in a 
timely manner.
    Response: NMFS disagrees. The SFPEIS was prepared to analyze the 
effects of the Deepwater Horizon MC252 oil spill, which occurred after 
the Council approved the FMP. NMFS provided the Council the opportunity 
to review and comment on the draft SFPEIS during the 45-day public 
comment period, which was noticed in the Federal Register on February 
28, 2014 (79 FR 11428). NMFS received 15 distinct comments on the draft 
SFPEIS and addressed those comments in the final SFPEIS, which is 
available on the Web site. The Council has the authority and discretion 
to revisit and modify the FMP at any time should the Council determine 
there is a conservation and management need that has not been 
addressed.
    NMFS did not make any substantive changes to the FMP that would 
require additional analysis in the SFPEIS. When approving the FMP, the 
Council was aware that staff would have usual editorial license to 
correct errors and improve the readability of the document. Thus, 
consistent with this understanding, NMFS and Council staff made several 
editorial changes to the FMP following Council approval in January 
2009, but no substantive changes were made prior to the Council's 
formal submission of the FMP to the Secretary of Commerce for review.
    In regard to the timeliness of the SFPEIS, NMFS finalized the 
document within approximately two years of the notice of intent to 
prepare an SFPEIS. This schedule is not atypical for such documents. 
Section 1502.9 of the CEQ regulations implementing NEPA specifies under 
what conditions agencies must supplement an EIS, but does not dictate 
specific timeframes in regard to preparation of such documents.
    Comment 31: One commenter stated the FMP/FPEIS is inconsistent with 
NEPA because the ``Purpose and Need'' section of the document is too 
narrowly defined, rendering the agency's alternatives analysis 
meaningless. Another commenter also stated the FMP/FPEIS does not 
contain an adequate impact analysis and fails to evaluate a reasonable 
number of alternatives.
    Response: NMFS disagrees that the purpose and need of the FMP/FPEIS 
is too narrowly defined to support a reasonable range of alternatives 
and that the impact analysis is inadequate.
    The stated purpose of the FMP is to maximize benefits to the Nation 
by establishing a regional permitting process to manage the development 
of an environmentally sound and economically sustainable aquaculture 
fishery in the Gulf EEZ. This purpose is not so narrow as to define 
competing reasonable alternatives out of consideration. The Council 
initiated this action to provide a programmatic approach to evaluating 
the impacts of aquaculture proposals in the Gulf.
    The FPEIS analyzes a wide range of alternatives considered by the 
Council and NMFS related to all aspects of the aquaculture permitting 
program, including No Action alternatives for each action analyzed in 
the FPEIS. The proposed action to establish a permit program for 
aquaculture facilities in the Gulf EEZ considered a No Action 
alternative that would maintain the status quo (an exempted fishing 
permit would be required to conduct aquaculture in the Gulf EEZ), as 
well as reasonable range of alternatives to maintaining the status quo, 
including one that defines the permit program in this final rule and 
one that would have required separate permits for siting and 
operations. Also, the FMP/FPEIS explores a number of other alternatives 
related to permit duration; operational requirements and restrictions; 
species to be cultured and systems to be used; siting requirements and 
restrictions; restricted access zones; reporting and recordkeeping 
requirements; management reference points; and framework procedures.
    Section 6.0 of the FMP/FPEIS contains a detailed comparative 
analysis of the direct and indirect effects of the proposed action and 
all alternatives on the affected physical, biological, ecological, 
economic, social, and administrative environments described in Section 
5.0 of the document. Additional alternatives the Council considered 
during the scoping and public review process, but did not retain for 
full analysis, are described in Appendix D, along with the rationale 
for eliminating them from detailed study.
    Comment 32: The proposed rule should have referenced the NEPA 
analysis for this action.
    Response: The proposed rule indicated that NMFS prepared a FPEIS in 
association with the FMP to satisfy NEPA. Also, the proposed rule 
stated that NMFS was preparing a SFPEIS to consider new information 
related to the Deepwater Horizon MC252 oil spill. The proposed rule 
specifically requested comments on a draft SIR NMFS prepared to 
evaluate whether there is a need for additional supplemental NEPA 
analysis on the FPEIS specific to the passage of time in accordance 
with 40 CFR 1502.9(c).
    Comment 33: The FMP is deficient because it fails to consider 
socio-

[[Page 1773]]

economic impacts; environmental impacts related to benthic and water 
quality impacts, ocean ecosystem impacts, escapes, diseases and 
parasites, overfishing of forage fish species, and human health; new 
information relevant to the effects analysis; reasonable mitigation 
measures; and recent studies which address the ecological, economic, 
and cultural problems associated with aquaculture.
    Response: NMFS disagrees. Section 6.0 of the FMP/FPEIS analyzes the 
direct, indirect, and cumulative effects of marine aquaculture on the 
environment, including the potential economic and social effects of the 
fishery on domestic fisheries and fishing communities; potential user 
conflicts; the effects of aquaculture systems and effluent on 
surrounding habitats and ecosystems; potential interactions with 
wildlife; the effects of culturing species, including harvesting prey 
species for feed, and escapes on local wild stocks; the effects of 
diseases and parasites on aquatic animal health; and the effects of 
cultured species on human health, with respect to the use of 
antibiotics and consumption of cultured fish and the health benefits of 
consuming seafood. Section 6.1.4 summarizes the mitigation measures 
incorporated into each proposed action, and concludes those measures 
sufficiently mitigate the impacts of offshore marine aquaculture.
    In regard to the lack of recent information in the FMP, the FMP was 
finalized in 2009, however, the SFPEIS and SIR evaluated recent studies 
and new information relevant to the effects analysis and determined no 
changes to the proposed actions are warranted. Those documents are 
available on the Web site.
    Comment 34: The proposed rule places the responsibility for 
conducting an environmental assessment on each permit applicant.
    Response: The proposed rule stated that applicants for Gulf 
aquaculture permits are required to submit environmental assessments to 
NMFS, along with their applications. The term ``environmental 
assessment'' used in that context refers to baseline environmental 
assessments, which will contain survey and data requirements that NMFS 
will use to review and approve proposed aquaculture sites during the 
permit application process.
    Because the term ``environmental assessment'' is also a common NEPA 
term, NMFS changed the term ``baseline environmental assessment'' to 
``baseline environmental survey'' in this final rule to avoid 
confusion. The baseline environmental survey requirement is separate 
from any additional NEPA analysis which NMFS may undertake for 
individual aquaculture applications during the permit review process.
    Comment 35: The application of NEPA to the aquaculture permit 
approval process established in the FMP and this final rule is 
questionable. Specifically, it is unclear whether the process 
constitutes a major Federal action subject to NEPA and whether the 
``tiering'' process established by the FPEIS precludes the use of EISs 
in evaluating individual Gulf aquaculture permit applications. In 
addition, a separate NEPA review should be conducted related to the 
harvest of fish from offshore systems, which requires a separate 
approval from NMFS and is therefore a separate agency action.
    Response: The implementation of the Gulf aquaculture FMP is a major 
Federal action subject to NEPA. The FPEIS and SFPEIS serve as the basis 
for evaluating the effects of issuing permits to Gulf aquaculture 
operations. NMFS intends to evaluate each aquaculture application 
during the review and approval process to determine whether it is 
adequately supported by the FPEIS and SFPEIS and, therefore, NEPA 
compliant. If an application proposes an action, including activities 
related to the harvest of fish from offshore systems, which 
substantially differs from the FMP in a way that is relevant to 
environmental concerns, or presents significant new circumstances or 
information relevant to environmental concerns, then NMFS will further 
supplement the FPEIS, consistent with Council on Environmental Quality 
regulations at 40 CFR 1502.9(c). If NMFS determines that additional 
supplemental NEPA analysis is needed, then that analysis will likely 
``tier'' off the analyses in the FPEIS and SFPEIS, and would be 
prepared, circulated and filed in the same fashion (exclusive of 
scoping) as the draft and final PEIS and SPEIS.
    Comment 36: The Council violated the Magnuson-Stevens Act and NEPA 
when they deemed the changes NMFS made to the proposed regulations in 
2013 because they did not revisit and amend the FMP before they deemed 
the regulations and because the SFPEIS had not yet been finalized 
before they deemed the regulations.
    Response: NMFS disagrees that the Magnuson-Stevens Act requires the 
Council to revisit and amend the FMP before deeming changes to the 
implementing regulations. Before publishing the proposed regulations 
the Council submitted along with the FMP in 2009, NMFS added some 
additional language to clarify the FMP requirements. That language did 
not change any FMP requirements. Because the regulations and FMP are 
consistent, the Council did not need to consider amending the FMP to 
resolve any inconsistencies when they deemed the additional language as 
necessary and appropriate for implementing the FMP.
    Also, NMFS disagrees that NEPA requires the SFPEIS to have been 
finalized before the Council deemed changes to the regulations 
implementing the FMP. Council on Environmental Quality regulations at 
Sec.  1502.9(c) require federal agencies to supplement EISs if they 
make substantial changes to the proposed action that are relevant to 
environmental concerns or if there are significant new circumstances or 
information relevant to environmental concerns and bearing on the 
proposed action or its impacts. As stated in the notice of intent 
published in the Federal Register on January 25, 2013, NMFS prepared 
the SFPEIS to evaluate how the Deepwater Horizon MC252 oil spill may 
have changed the affected environment since the FMP took effect and 
whether there is a resulting need to revisit the FMP (78 FR 5403). 
Because the regulations deemed by the Council simply implement the 
existing FMP, the analysis in the SFPEIS was not relevant to the 
Council action to deem those regulations.
    The SFPEIS, which published in the Federal Register on July 2, 
2015, concludes, based on the information known at this time, there is 
no reason to believe the conclusions reached in the FMP/FPEIS have been 
altered or changed due to the oil spill and, therefore, there is no 
need to evaluate other actions or alternatives that differ from those 
considered in the original FPEIS (80 FR 38199). Through the Natural 
Resource Damage Assessment process, NOAA and the other trustees 
continue to work toward a better understanding of the effects of the 
Deepwater Horizon MC252 oil spill on the environment and resources of 
the northern Gulf. The Council may revisit the FMP at any time should 
they determine there is a conservation and management need that has not 
been addressed.
    Comment 37: NMFS failed to satisfy the procedural requirement of 
NEPA by not publishing a record of decision (ROD) within 30 days of 
finalizing the FPEIS.
    Response: NEPA does not require that an agency publish a ROD within 
30 days of finalizing an EIS. Per 40 CFR 1505.2, an agency is required 
to publish the ROD at the time of its decision. The only timing 
limitations with respect to publishing the ROD are set out in 40 CFR 
1506.10(b), which states that this

[[Page 1774]]

cannot occur until the later of 90 days after publication of a notice 
of a draft EIS or 30 days after publication of a notice of a final EIS.

Gulf Aquaculture Permitting Process and Requirements

    Comment 38: The final rule should explain the regulatory framework 
for other Federal agencies for permitting offshore aquaculture 
operations.
    Response: NMFS disagrees that it is necessary to explain in this 
final rule the regulatory framework of other Federal agencies for 
permitting offshore aquaculture operations. Section 10.0 of the FMP 
outlines other applicable Federal laws in relation to offshore 
aquaculture facilities. In addition, the National Science and 
Technology Council's Committee on Science's Interagency Working Group 
on Aquaculture (formerly known as the Joint Subcommittee on 
Aquaculture) established a Regulatory Task Force to better streamline 
and coordinate the Federal aquaculture permitting processes, and that 
Working Group is developing a guidance document that outlines the 
various permitting responsibilities and authorities of Federal agencies 
for offshore aquaculture operations in the Gulf EEZ. This document will 
be made available on the Web site when the rule becomes effective.
    Comment 39: The criteria for Gulf aquaculture permit renewals 
should be explicitly stated.
    Response: Section 622.101(d)(6) of the final rule states the 
requirements and timing criteria for permit renewals. Applicants must 
submit a completed renewal application form and all required supporting 
documentation to the RA at least 120 days and 30 days prior to the date 
they desire the aquaculture permit or aquaculture dealer permit renewal 
to take effect, respectively. The application forms will indicate the 
specific information and documentation required, which will be a sub-
set of the information and documentation required for initial issuance 
of the permit as specified in Sec.  622.101(a)(2) of this final rule. 
NMFS considers compliance with recordkeeping and reporting requirements 
(including annual reports) as specified in the regulations as 
information necessary for administration of the permit, and may decline 
to process a renewal request until all the applicable requirements are 
met. Further, as stated in Sec.  622.101(d)(8), a permit application 
may be denied in accordance with the procedures governing enforcement-
related permit sanctions and denials found at subpart D of 15 CFR part 
904.
    Comment 40: The requirement that permittees deploy at least 25 
percent of aquaculture systems within 2 years of permit issuance and 
stock juveniles into these systems within 3 years of permit issuance 
does not take into account the long lead times required to establish an 
aquaculture operation. NMFS should allow at least 5 years for these 
activities or require permittees to submit a site development plan and 
ensure that certain milestones are met.
    Response: The Council determined, and NMFS agrees, the 2- and 3-
year time requirements for deploying systems and stocking juveniles, 
respectively, were considered reasonable for an aquaculture facility to 
begin operation.
    Permittees may request a 1-year extension of these deadlines in the 
event of a catastrophe (e.g., hurricane). The RA will approve or deny 
the extension request after determining if catastrophic conditions 
exist and whether or not the permittee was affected by the catastrophic 
conditions. The RA will provide the determination and the basis for it, 
in writing to the permittee.
    Comment 41: NMFS should implement a streamlined permitting process 
with other Federal agencies to reduce any conflicting or duplicative 
requirements. Additionally, a Memorandum of Understanding (MOU) should 
be developed between the appropriate Federal agencies, and agencies 
should be provided adequate time and resources to build enforcement 
capacity.
    Response: NOAA chairs the Interagency Working Group on 
Aquaculture's Regulatory Task Force, which is charged with coordinating 
Federal aquaculture permitting processes to reduce duplication and 
streamline permitting processes. As part of that effort, NMFS and other 
Federal agencies are developing an interagency MOU to facilitate the 
needed coordination.
    Comment 42: There should be at least a 60-day public comment period 
on each Gulf aquaculture permit application. Another comment stated 
that any public comment period requirement is burdensome and 
unnecessary.
    Response: The Council determined, and NMFS agrees, that, as a 
general rule, a 45-day comment period is sufficient for purposes of 
commenting on individual aquaculture applications because this provides 
the public ample time to review and comment on applications without 
unduly delaying the review process.
    NMFS disagrees that the comment period is burdensome and 
unnecessary. The public comment period on individual aquaculture 
applications is a critical component of the approval process. Public 
comments received on individual applications may allow NMFS to identify 
potential user conflicts and other issues that may be relevant to NMFS' 
decision regarding whether to approve a permit. Facilitating public 
participation in the decision to issue a Gulf aquaculture permit is an 
important part of the process that will improve NMFS' decision making 
without unduly burdening the permit applicant.
    Comment 43: The final rule should direct NMFS to consider all 
relevant ecological factors during the permit review process.
    Response: NMFS agrees that it is important to consider relevant 
ecological factors during the permit review process and has determined 
that the final rule requires this consideration. As specified in 
Sec. Sec.  622.103(a)(4) and 622.105(a), the RA will evaluate each 
proposed site, and each proposed system and its operations, during the 
permit review process. NMFS may deny use of a site or a system if it is 
determined to pose a significant risk to wild fish stocks, EFH, 
endangered or threatened species, or marine mammals, will result in 
user conflicts with commercial or recreational fishermen, other marine 
resource users, or the OCS energy program, if 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 if the proposed site or system is otherwise inconsistent 
with FMP objectives or other applicable law.
    Comment 44: The final rule should establish grounds for revoking, 
suspending, or modifying permits and explain when NMFS will take 
remedial actions.
    Response: Section 622.101(d)(8) of this final rule specifies that a 
permit may be revoked, suspended, or modified in accordance with the 
procedures governing enforcement-related permit sanctions and denials 
found at subpart D of 15 CFR part 904. Section 904.301(a) specifies the 
bases for permit sanction or denials, including the commission of any 
violation prohibited by any statute administered by NOAA, including 
violation of any regulation promulgated or permit condition or 
restriction prescribed thereunder, by the permit holder or with the use 
of a permitted vessel. Thus, reasons for revoking

[[Page 1775]]

permits include, but are not limited to, failure to comply with the 
monitoring, recordkeeping or reporting requirements of NMFS and other 
Federal agencies, failure to maintain valid ACOE Section 10 and EPA 
NPDES permits and failure to abide by permit terms and conditions.
    Section 622.108 addresses remedial actions by NMFS and provides 
that in addition to permit sanction and denials, NMFS may order 
movement restrictions or the removal of all cultured animals if 
pathogens are identified or it is determined the genetically engineered 
or transgenic animals were used.
    Comment 45: The 180-day time period for review of a Gulf 
aquaculture permit is excessive and should be changed to 90 days, after 
which time the permit should be issued if NMFS has not made a decision.
    Response: NMFS disagrees that a 180-day time period for permit 
review is excessive and that a 90-day permit review timeframe would be 
adequate. The Council determined, and NMFS agrees, that 180 days is a 
reasonable amount of time to review and process individual permit 
applications, conduct public comment periods, and complete necessary 
consultations without unduly delaying or prolonging the approval 
process.
    Comment 46: Several commenters stated that 10-year permit terms and 
5-year renewals are not long enough to attract significant commercial 
investment and that permits should be issued for longer periods of 
time. In contrast, several other commenters stated that permit terms 
should be issued for shorter periods of time to ensure permits are 
thoroughly reviewed on a more frequent basis.
    Response: The Council determined, and NMFS agrees, the initial 
permit term of 10 years with 5-year renewals strikes the best balance 
between providing adequate time to establish operations and funding, 
while not granting excessively long permit durations which would make 
it difficult for NMFS to review and address any unexpected problems 
related to user conflicts or other issues. However, in response to 
industry concerns, NMFS has also determined that it is appropriate to 
make an administrative change to the permitting process to allow permit 
holders to request additional time to secure financing and prepare for 
production without changing the 10-year effective period of the initial 
issuance. Therefore, NMFS is modifying the requirements in Sec.  
622.101(d)(3)(iii) to allow the applicant to defer initial issuance of 
a Gulf aquaculture permit for up to 2 years from the date the RA 
notifies the applicant of the decision to grant the permit. The Council 
may choose to change the permit duration terms in the future after more 
information is known about the impacts and feasibility of aquaculture 
operations in the Gulf EEZ. Additionally, as discussed above, in the 
event of a significant unexpected problem requiring urgent action to 
protect public health, interest, or safety, NMFS may consider 
withdrawing, suspending, revoking, or annulling a permit pursuant to 
the Administrative Procedure Act, 5 U.S.C. 558(c).
    Comment 47: The $10,000 permit application fee is prohibitive and 
unnecessary given the nascent status of the offshore aquaculture 
industry.
    Response: NMFS disagrees. The fee schedule for permit applications 
is based on criteria set forth in the NOAA Finance Handbook and 
reflects the administrative costs associated with review of Gulf 
aquaculture permit applications and permit issuance. These costs 
include meeting with potential applicants to provide guidance and 
identifying critical issues before applications are finalized, 
reviewing application packages (e.g., site surveys, systems, business 
information) to determine the impacts of proposed operations on NOAA 
trust resources and associated requirements consulting with the Council 
and the public on proposed operations, and legal and technical support 
informing determinations regarding permit issuance. Details on the NOAA 
Finance Handbook can be found at: https://www.corporateservices.noaa.gov/finance/Finance%20Handbook.html.
    Comment 48: NMFS should explain the contingencies for transferring 
a Gulf aquaculture permit.
    Response: Permit transfer provisions are outlined in Sec.  
622.101(d)(5) of this final rule. Gulf aquaculture permits are 
transferable as long as the geographic location of the aquaculture 
facility site remains unchanged and all applicable permit requirements 
were completed and updated at the time of transfer. The transferee must 
also be a U.S. citizen or permanent resident alien in order to be 
eligible for a permit.
    Comment 49: The proposed rule estimates the average time to prepare 
a Gulf aquaculture permit application and supporting documents to be 33 
hours. This is an underestimation. The final rule should also correct 
the assumption that the baseline environmental survey will require 24 
hours to complete as this will likely take several weeks or more.
    Response: NMFS agrees and has recalculated the estimated time it 
will take to prepare a permit application and supporting documents 
(assurance bond, contract with a certified aquatic animal health 
expert, emergency disaster plan) to be approximately 51 hours. This 
estimate does not include the time necessary to complete a baseline 
environmental survey, which could take up to 320 hours based on the 
calculation of work necessary to conduct the survey on a site that 
would produce approximately 12.8 million lb (5.8 million kg) annually. 
NMFS notes that the actual time to complete an application and baseline 
environmental survey may vary as it will depend on the complexity of 
the operation, as well as the location and size of the proposed site.

Siting Criteria and Requirements

    Comment 50: NMFS should consider information on ocean depth, ocean 
speeds, substrate types, hypoxia, and fish habitats prior to approving 
a permit.
    Response: NMFS agrees. As specified in Sec.  622.103(a)(4) and as 
discussed in Section 4.6 of the FMP, the RA will evaluate proposed 
sites on a case-by-case basis. Siting criteria for offshore aquaculture 
systems include but are not limited to: The depth of the site, current 
speeds and benthic sediments, the frequency of harmful algal blooms or 
hypoxia at the proposed site, marine mammal migratory pathways, and the 
location of the proposed site relative to important habitats. NMFS will 
consider this information as well as information from the baseline 
environmental survey requirement when determining whether to approve or 
deny a permit.
    The RA may deny use of a proposed aquaculture site based on a 
determination the proposed site: Would pose significant risks to EFH, 
or to endangered or threatened species; would result in user conflicts 
with commercial or recreational fishermen or with other marine resource 
users; would pose risk to the cultured species due to low dissolved 
oxygen or harmful algal blooms; is not of sufficient depth for the 
approved aquaculture system; is characterized by substrate and currents 
that would inhibit the dispersal of wastes and effluents; or is 
otherwise inconsistent with FMP objectives and applicable Federal laws.
    Comment 51: The 1.6 nm (3 km) minimum distance between aquaculture 
operations is too conservative and should be based on scientific 
criteria and designated on a case-by-case basis according to the 
specifics of each facility.
    Response: The Council determined, and NMFS agrees, that, as a 
general rule, 1.6 nm (3 km) provides a sufficient buffer between Gulf 
aquaculture facilities. As discussed in the proposed

[[Page 1776]]

rule, as well as in section 4.6 of the FMP, this siting requirement was 
established to minimize transmission of pathogens between facilities. 
British Columbia and Chile require salmon farms to be sited at least 
1.6 nm (3km) apart, while Scotland requires salmon farms to be sited at 
least 4.3 nm (8km) apart. By comparison, Nova Scotia, Newfoundland, 
Maine, and New Brunswick require salmon farms to be separated by a 
distance of 0.5 nm (1 km) or less. Thus, although there is no widely 
accepted standard for how far apart facilities should be sited, the 
farther apart facilities are sited, the lower the likelihood that water 
from one facility will contaminate water at another facility. The 
Council determined and NMFS agrees that the minimum distance of 1.6 nm 
(3 km) strikes an appropriate balance. However, this final rule also 
states that each proposed site will be evaluated on a case-by-case 
basis and allows the RA to deny the use of a proposed site based on the 
criteria in Sec.  622.103(a)(4) even if it meets or exceeds the minimum 
distance requirement of 1.6 nm (3 km).
    Comment 52: NMFS should prohibit siting of aquaculture facilities 
in sensitive habitats. Offshore aquaculture facilities will compete for 
space with other uses of the ocean, such as protected areas (e.g., 
marine reserves).
    Response: NMFS agrees that offshore aquaculture facilities should 
not be sited in sensitive habits. The requirement to monitor and report 
baseline environmental survey data will allow NMFS to determine if 
sensitive habitat exists at the site and could be impacted by 
aquaculture operation.
    To ensure facilities do not compete with marine reserves and other 
protected areas, Sec.  622.103(a)(1) of the final rule specifies that 
offshore aquaculture operations would be prohibited in Gulf EEZ marine 
protected areas and marine reserves, HAPCs, Special Management Zones, 
and permitted artificial reef areas and coral reef areas. Additionally, 
permits other than those for aquaculture may also be required in 
certain protected areas, such as within National Marine Sanctuaries, 
for example. NMFS may also deny a proposed site if it is found to pose 
significant risks to EFH or is otherwise inconsistent with FMP 
objectives and applicable Federal law.
    Comment 53: The proposed rule states that a proposed aquaculture 
site could be denied if it would result in user conflicts with 
recreational or commercial fishing or other marine users (e.g., oil and 
gas infrastructure) and this could displace aquaculture operations to 
less desirable areas.
    Response: NMFS recognizes that user conflicts may result in the 
denial of certain sites, however, this is not expected to result in 
displacement of aquaculture operations to areas considered to be less 
desirable. NMFS will work with other Federal agencies and the public to 
balance the various uses of the Gulf EEZ and develop processes to 
identify potential siting conflicts early in the permitting process.

Harvest and Landing Requirements

    Comment 54: The requirement to land cultured fish between 6 a.m. to 
6 p.m. local time is unreasonable. Restricting landing times to 
daylight hours may increase production losses due to predators or 
environmental factors. The ability to land at night should be allowed.
    Response: NMFS agrees that restricting the time a vessel can arrive 
at a dock (i.e., ``land'') with cultured fish is overly restrictive. 
The regulations at 50 CFR 600.10 define ``land'' as begin offloading 
fish, to offload fish, or to arrive in port or at a dock, berth, beach, 
seawall, or ramp. The FMP, and the codified text in the proposed rule, 
stated that species cultured at an aquaculture facility must be 
``landed ashore'' between 6 a.m. and 6 p.m., local time. However, the 
preamble to the proposed rule stated that permittees participating in 
the aquaculture program would be allowed to ``offload'' cultured 
animals at aquaculture dealers only between 6 a.m. and 6 p.m., local 
time. NMFS has determined that using the more precise term ``offload'' 
in this context is consistent with the objective of the requirement, 
which is to aid enforcement, while also allowing vessels the 
flexibility to arrive at the dock at any time. By restricting 
offloading times, law enforcement will be able to ensure that vessels 
are landing only cultured species (e.g., secure tissue samples to be 
tested against broodstock DNA). For the purposes of this requirement, 
NMFS is defining the terms ``offload'' in Sec.  622.106(a)(14) to mean 
``to remove cultured animals from a vessel.''
    Comment 55: The requirement that cultured fish be landed whole 
(with heads and fins intact) is inappropriate and should be removed.
    Response: NMFS disagrees the requirement that cultured fish be 
landed whole is inappropriate. Landing cultured fish with heads and 
fins intact will assist enforcement agents in properly identifying 
cultured species, promoting effective implementation and oversight of 
program rules and regulations.
    Comment 56: The requirement for permittees to notify NMFS at least 
72 hours prior to harvesting fish from offshore aquaculture systems is 
problematic as harvest timeframes can change due to weather and other 
factors.
    Response: The Council determined, and NMFS agrees, the 72-hour 
notification window is necessary to allow law enforcement and NMFS 
staff the opportunity to be present at a facility when harvesting 
occurs to verify that permittees remain within their production cap and 
that only cultured species are harvested. If the anticipated harvest 
times are delayed or change due to inclement weather or other 
circumstances, then permittees can update NMFS by phone or web-based 
form.
    Comment 57: The proposed rule states that permittees must notify 
NMFS within 72 hours of landing to ensure that only cultured animals 
are landed. Another way to verify that only cultured animals are landed 
is by conducting tissue analysis (e.g., fatty acid composition) on 
landed fish.
    Response: NMFS is aware of studies which have demonstrated that 
commercial feed diets fed to cultured animals can help to distinguish 
these fish from their wild counterparts. However, the 72-hour 
notification requirement is different as it allows law enforcement the 
opportunity to intercept fish at the time of landing. NMFS will employ 
genetic verification techniques, when necessary, to verify that only 
cultured fish are landed.

Allowable Aquaculture Species and Systems

    Comment 58: The final rule should explicitly state that only 
federally managed species are allowed to be cultured in the Gulf EEZ 
and explain the mechanism for managed species in the Gulf EEZ.
    Response: Section 622.105(b) of the final rule states that the only 
species that may be cultured in the Gulf EEZ under the FMP are species 
of coastal migratory pelagic fish, Gulf reef fish, red drum, and spiny 
lobster that are managed by the Council. As explained in the preamble, 
anyone wishing to culture species in the Gulf EEZ that are not managed 
by the Council would have to apply for an EFP. Information on applying 
for an EFP can be found at 50 CFR 600.745.
    Comment 59: The states should play a role in determining the type 
and amount of species allowed for culture.
    Response: NMFS agrees. During the development of the FMP, Council 
representatives from all five Gulf states were involved in decisions 
related to

[[Page 1777]]

the type and amount of species that could be cultured under a Gulf 
aquaculture permit. The Council has continuing authority over 
aquaculture operations in the EEZ and may modify the types and amounts 
of species authorized to be cultured at any time, consistent with the 
requirements of the Magnuson-Stevens Act. In addition, the RA will 
consult with the Council during the public comment period on specific 
permit applications as required in Sec.  622.101(d)(2)of this final 
rule.
    Comment 60: NMFS should require the use of advanced aquaculture 
systems that avoid and minimize environmental harm.
    Response: The Council determined, and NMFS agrees, that requiring 
use of specific aquaculture systems is not ideal as there is a wide 
array of offshore aquaculture systems that are used. Allowing 
flexibility regarding aquaculture systems is necessary to ensure 
systems have sufficient structural integrity and allow for innovation 
as aquaculture system technology develops.
    To minimize or avoid the risk of environmental harm from 
aquaculture systems, the RA will review the structural integrity and 
other aspects of each proposed system on a case-by-case basis. The RA 
may deny use of a proposed system, or specify conditions for using a 
proposed system, if it is determined to pose a significant risk to EFH, 
endangered or threatened marine species, marine mammals, wild fish or 
invertebrates, public health, and safety. This case-specific approach 
will help improve the potential economic viability and returns of 
aquaculture operations by ensuring each operation the opportunity to 
use the system that best meets its production goals without 
compromising environmental standards and objectives.
    Comment 61: The requirement that aquaculture systems be fitted with 
a locating device should be removed.
    Response: NMFS disagrees. Locating devices will allow operators to 
locate, and potentially retrieve, aquaculture structures in the event 
that they break free or are transported away from the permitted site. 
The Council determined, and NMFS agrees, this requirement is necessary 
to help prevent long-term damage to habitat and increase navigational 
safety.

Reportable Pathogens and Animal Health

    Comment 62: Permittees should report pathogen episodes directly to 
APHIS so that APHIS can confirm the presence of reportable pathogens 
and take the appropriate steps to implement control or eradication 
measures.
    Response: NMFS disagrees that it is necessary for permittees to 
report pathogen episodes directly to APHIS rather than NMFS. Section 
622.102(a)(1)(i)(C) of this final rule requires permittees to report 
all findings or suspected findings of any OIE or NAAHP reportable 
pathogen episodes to NMFS within 24 hours of diagnosis. Upon 
confirmation by an APHIS-approved reference laboratory that a 
reportable pathogen exists and the determination that the pathogen 
poses a significant risk to the health of wild or farmed aquatic 
organisms, NMFS, in cooperation with APHIS, will take appropriate 
actions, which may include the removal of all cultured animals from the 
offshore aquaculture systems. The Council determined, and NMFS agrees, 
this process provides the necessary safeguards to adequately address 
any pathogen episodes.
    Comment 63: NOAA should defer primary regulatory responsibility and 
oversight of all animal health and pathogen related issues to APHIS and 
address these issues in an interagency MOU.
    Response: NMFS disagrees that primary regulatory responsibility for 
cultured animals should be deferred to APHIS. NMFS will work in 
cooperation with APHIS and aquaculture facility staff to sample 
cultured animals for testing, conduct testing at APHIS-approved 
laboratories, and take any actions needed to address pathogen episodes. 
In regard to issuing health certificates and assisting growers with 
their animal health plans for cultured animals, NMFS has determined 
that these activities may be carried out by an aquatic animal health 
expert as defined in Sec.  622.2 of this rule. Oversight of broader 
animal health and pathogen issues for wild fish is outside of the scope 
of this rule and is not addressed further.
    A current MOU already exists between NMFS, APHIS and the United 
States Fish and Wildlife Service (USFWS) which outlines the legal 
authorities and mandates and roles and responsibilities of the three 
agencies with respect to animal health.
    Comment 64: NMFS should define an ``aquatic animal health expert'' 
as a licensed veterinarian. NMFS should also require that only 
accredited veterinarians be allowed to issue health certificates and 
these veterinarians should be required to have fish health experience.
    Response: NMFS disagrees. Many state and Federal agencies recognize 
that experts other than veterinarians are qualified to carry out 
inspections, test for pathogens, issue health certificates, and assist 
growers in their respective overall animal health plans. The broader 
definition of ``aquatic animal health expert'' in Sec.  622.2 of this 
final rule will provide the fishery greater flexibility by enabling 
persons certified by the American Fisheries Society, Fish Health 
Section, as a ``Fish Pathologist'' or ``Fish Health Inspector'', to 
perform those general animal health functions. There is no requirement 
under the Veterinary Accreditation regulations for veterinarians to 
have specific experience for the animal they are working with (e.g., 
fish).
    Comment 65: The final rule should include details regarding health 
screening of cultured animals and specify which criteria will be used 
to certify that cultured animals are free of OIE-reportable pathogens 
prior to stocking.
    Response: NMFS disagrees that the final rule needs to provide 
additional details regarding diagnostic testing (i.e., health 
screening) as these methods will vary for each cultured species and may 
change over time. In regard to diagnostic techniques used to detect 
OIE-reportable diseases, methods relevant to the OIE-listed diseases 
can be found in the Manual of Diagnostic Tests for Aquatic Animals at: 
https://www.oie.int/international-standard-setting/aquatic-manual/.
    NMFS and APHIS staff will work closely with the permittee and 
designated aquatic animal health expert for each facility to ensure 
that appropriate diagnostic testing is conducted prior to each stocking 
event. NMFS believes this process provides sufficient safeguards 
against the potential spread of pathogens and disease from cultured to 
wild fish at an aquaculture facility.
    Comment 66: When reporting an OIE or NAAHP pathogen, notification 
should be made within 48 hours of the discovery of a mortality rate of 
5 percent or more that occurs within a 7-day period. NMFS should also 
require that epidemiological samples be submitted to a certified 
aquatic animal health expert for diagnosis.
    Response: The Council determined, and NMFS agrees, the current 
requirement to report all reportable pathogens within 24 hours of 
diagnosis, regardless of the mortality rate of the cultured animals 
affected, is necessary to ensure wild stocks and other marine resources 
are appropriately safeguarded. The less conservative threshold and 
reporting timeframe suggested could result in a longer period of time 
before the reportable pathogen issue is

[[Page 1778]]

addressed. The current requirement will allow NMFS and other agencies 
to more quickly and efficiently respond to reportable pathogen events.
    NMFS will work in cooperation with APHIS and the aquaculture 
facility staff to collect samples for testing, conduct testing at 
APHIS-approved laboratories, and take any actions needed to address 
pathogen episodes.

Aquaculture Feeds, Antibiotics, and Other Chemicals

    Comment 67: NMFS should cap the amount of fish meal and fish oil 
used by aquaculture operations and require the use of alternative feeds 
which do not contain these ingredients.
    Response: NMFS disagrees that it is necessary to specify which 
feeds can and cannot be used in aquaculture. The percentage of fish 
meal and fish oil used in aquaculture feeds has decreased in recent 
years and continues to decrease, in part because many feeds which are 
free of or low in fish meal and oil are now commercially available. The 
world supply of fish meal and fish oil from pelagic fisheries has 
remained relatively constant over the past 20 years at around 6 million 
metric tons, even as aquaculture operations continue to expand. 
Alternate ingredients being used in aquaculture feeds include soybeans, 
barley, rice, peas, canola, lupine, wheat gluten, corn gluten, algae, 
as well as seafood and farm animal processing co-products.
    Comment 68: Farmed fish often receive large doses of antibiotics 
and other chemicals to protect them from diseases and parasites. These 
chemicals can have a negative impact on the marine environment as well 
as human health. The use of aquaculture feeds made from wild-caught 
fish could also have human health consequences.
    Response: NMFS disagrees that farmed fish generally receive large 
doses of antibiotics or other chemicals, and has determined that the 
requirements in this final rule and the regulations promulgated by 
other Federal agencies will minimize the risk of negative impacts on 
the marine environment and human health. The use of antibiotics and 
other therapeutant chemicals in marine aquaculture has drastically 
decreased over the past several decades. In fact, the use of vaccines 
to prevent bacterial diseases has in the past 20 years reduced the use 
of antibiotics in marine farming by 95 percent. Effective vaccines have 
significantly reduced the use of antibiotics in certain sectors of the 
U.S. aquaculture industry (e.g., salmon farming). In addition to 
vaccines, good nutrition and improved husbandry have continued to play 
an important role in protecting cultured fish from disease and have 
thus significantly reduced the use of all types of therapeutants (i.e., 
a healing or curative agent or medicine) in aquaculture. Additionally, 
the use of drugs, pesticides, and biologics by NMFS permittees must 
comply with all applicable FDA, EPA, and United States Department of 
Agriculture (USDA) regulations, which are meant to minimize or avoid 
negative impacts on the marine environment and human health.
    In regard to the impact of aquaculture feeds on human health, FDA 
regulates fish feeds and ingredients under the Federal Food, Drug, and 
Cosmetic Act and requires animal feed to be safe and to be truthfully 
labeled. To be approved by FDA for use in animal feeds, additives must 
be demonstrated to be useful and to be safe to both the target animal 
(fish) and human consumers.
    Comment 69: The proposed rule and the FMP allow the use of 
potentially harmful drugs and chemicals, including extra-label drugs, 
which can negatively impact the marine environment.
    Response: NMFS disagrees. This final rule and the FMP require the 
use of drugs, pesticides and biologics to comply with FDA, EPA, and 
USDA regulations, which are designed to prevent or minimize negative 
environmental impacts. The list of drugs FDA has approved for 
aquaculture can be found at: https://www.fda.gov/animalveterinary/developmentapprovalprocess/aquaculture/ucm132954.htm. The extra-label 
use of drugs for aquaculture purposes is strictly regulated by FDA and 
must be on the order of a licensed veterinarian.
    Comment 70: The public should have access to records on the type 
and quantity of drugs and other chemicals used in offshore aquaculture 
as well as ongoing monitoring data for water quality and benthic 
sampling. In addition, states should play a role in determining 
monitoring protocols for aquaculture facilities.
    Response: NMFS does not regulate drugs or chemicals used in 
offshore aquaculture operations. The use of drugs, pesticides, and 
biologics are under the authority of FDA, EPA, and USDA, respectively. 
The EPA sets water quality monitoring protocols for offshore 
aquaculture operations and collects monitoring data. Dissemination of 
information collected by other Federal agencies would be subject to 
data disclosure provisions that are applicable to those agencies.
    NMFS may coordinate the development of monitoring protocols with 
other Federal agencies or defer to other agencies if those agencies 
have primary authority. In developing such protocols, NMFS may decide 
to solicit input from the states and the public.
    Comment 71: Aquaculture will pollute the environment.
    Response: NMFS disagrees that aquaculture, if properly regulated, 
will pollute the environment. The FMP and this final rule establish 
numerous environmental safeguards, including siting restrictions, 
monitoring and reporting requirements, and requirements to abide by 
regulations of other Federal agencies (e.g., use of drugs, pesticides, 
and biologics must comply with all applicable FDA, EPA, and USDA 
regulations), which are designed to minimize any potential adverse 
environmental effects of aquaculture operations. NMFS will review 
proposed sites and systems, and may deny those that are found to pose 
significant risks to marine resources or otherwise inconsistent with 
all applicable law. NMFS will work with permittees to resolve any 
unanticipated environmental problems or impacts that are identified 
after an operation is permitted. Permits are also subject to revocation 
when appropriate.

Assurance Bond

    Comment 72: The assurance bond should cover costs associated with 
finding, securing, and removing systems and impacts to natural 
resources caused by equipment or by escaped organisms. The final rule 
should also specify how much the assurance bond requirement will cost 
Gulf aquaculture permit holders. Additionally, the rule should indicate 
how states will be compensated for any impacts from aquaculture 
operation on state resources.
    Response: The assurance bond required by the FMP and this final 
rule will be used to remove aquaculture structures or cultured animals 
if permittees fail to do so when ordered to by NMFS. The assurance bond 
cannot be used to compensate for natural resource impacts caused by 
equipment or by escaped cultured animals. The Council determined, and 
NMFS agrees, that it is difficult to identify and define the added cost 
that would be required to compensate for such impacts, and that it is 
unnecessary to do so because the FMP and this final rule include 
numerous environmental safeguards (e.g., prohibitions on genetically 
engineered and transgenic animals) to prevent or minimize such damage. 
Additionally, the FMP and rule specify that NMFS will review the 
structural integrity of proposed aquaculture systems and may deny use 
of a

[[Page 1779]]

proposed system or specify conditions for its use if it is determined 
to pose a significant risk to EFH, endangered or threatened marine 
species, marine mammals, wild fish or invertebrate stocks, public 
health, or safety.
    The cost of the assurance bond will vary depending on the size and 
scale of the aquaculture facility and must be enough to cover the costs 
of removal of all components of the facility and cultured animals. NMFS 
will publish guidance on how to comply with the assurance bond 
requirement on its Web site when the rule becomes effective.
    The FMP and rule do not contain a compensatory mechanism for 
impacts to state marine resources resulting from aquaculture 
operations. However, the FMP and rule do contain several regulatory 
requirements which aim to prevent and manage adverse impacts to marine 
resources from aquaculture operations. These include disease testing 
prior to stocking juveniles into offshore aquaculture systems, 
reporting incidences of OIE and NAAHP reportable pathogens within 24 
hours, requiring that only local, native broodstock be used to produce 
juveniles for stocking in offshore systems, prohibiting the use of 
genetically engineered and transgenic animals for culture purposes, and 
reviewing potential sites for habitat concerns prior to permitting 
aquaculture operations.
    In addition, Sec.  622.102 in this final rule lists various 
recordkeeping and reporting requirements that will allow NMFS to work 
with a permittee to resolve potential problems and environmental 
impacts. Permits are also subject to revocation when appropriate.

Aquaculture Facility Inspections

    Comment 73: The inspection requirement and requirements to report 
the average price and weight of fish produced should be removed as it 
will result in the loss of intellectual proprietary information.
    Response: NMFS disagrees. The information NMFS employees and 
authorized officers access during the inspection process is needed to 
ensure aquaculture facilities operate in compliance with the applicable 
regulations relating to aquaculture in the Gulf EEZ. All private or 
intellectual property information which is required to be submitted in 
compliance with the requirements of this final rule is protected by the 
confidentiality of information provisions in section 402(b) of the 
Magnuson-Stevens Act and 50 CFR part 600, subpart E (Sec. Sec.  600.405 
through 600.425).

Broodstock and Cultured Animals

    Comment 74: The final rule should define ``population'' and 
``subpopulation'' for purposes of broodstock collection.
    Response: NMFS disagrees that it is necessary to define 
``population'' and ``subpopulation'' in the final rule. The precise 
meaning of these terms may vary depending on the species or stock at 
issue and will be based on the best scientific information available. 
NMFS will provide guidance on the meaning of the terms ``population'' 
and ``subpopulation'' as it relates to broodstock collection in a 
separate document which outlines specific broodstock sourcing 
requirements. This document will be made available on the Web site when 
the rule becomes effective.
    Comment 75: Broodstock should be collected from the same population 
or sub-population unless it can be shown that genetic homogeneity 
exists for that species in the Gulf.
    Response: NMFS agrees. The FMP and this final rule require that all 
broodstock, or progeny of such broodstock, must be originally collected 
from the same population or subpopulation where the aquaculture 
facility is located. This requirement ensures that the genetic make-up 
of cultured animals originates from the same stock where the facility 
will operate. Species that are found to be genetically homogeneous 
would, for all intents and purposes, be considered to be the same 
population.
    Comment 76: The final rule should specify requirements regarding 
the frequency of broodstock collection and hatchery breeding practices.
    Response: NMFS disagrees there is a need to regulate the frequency 
of broodstock collection. The appropriate collection frequency will 
vary depending on the size and scale of individual operations and the 
species being cultured.
    The FMP and this final rule allow NMFS to monitor the frequency of 
broodstock collection and minimize any potential adverse impacts of 
broodstock collection by requiring permittees to obtain the RA's 
approval prior to each collection event. Collection requests must 
include information on the number, size, and species to be harvested, 
the methods, gear, and vessels to be used for capturing, holding, and 
transporting broodstock, the date and specific location of the intended 
harvest, and the location where the broodstock will be delivered. The 
RA may deny a request to harvest broodstock if allowable methods or 
gear are not proposed for use, the number of broodstock is larger than 
necessary for spawning and rearing activities, or if the proposed 
activity is inconsistent with FMP objectives or Federal laws.
    Additionally, if a broodstock harvest request is approved, the 
permittee will be required to submit a report to the RA within 15 days 
of the date of harvest summarizing the number, size, and species to be 
harvested, and identifying the location where the broodstock were 
captured. If this information suggests that more specific requirements 
pertaining to frequency of broodstock collection are necessary, the 
Council may consider modifying the FMP to include such requirements.
    NMFS also disagrees that hatchery breeding practices should be 
regulated by this rulemaking. NMFS has determined it is more 
appropriate to develop guidance on hatchery breeding protocols 
separately as this will allow for the guidance to be adapted in a more 
timely manner as information evolves. This guidance will be available 
on the Web site when the rule becomes effective.
    Comment 77: The final rule should allow cultured juveniles to be 
sourced from hatcheries in foreign countries.
    Response: NMFS disagrees. As stated in the preamble to this final 
rule and discussed in the FMP, allowing organisms to be obtained from 
non-U.S. hatcheries for grow-out would make it difficult to enforce 
regulatory requirements that are intended to prevent or minimize the 
environmental impacts of potential escapements (e.g., animals cannot be 
genetically engineered or transgenic, must be sourced from the same 
population or subpopulation that occurs where the facility is located, 
must be certified as pathogen-free prior to stocking in offshore 
systems, etc.). Therefore, no changes have been made to this 
requirement.
    Comment 78: The proposed rule states that permittees would be 
required to submit a request to NMFS to harvest broodstock from the 
Gulf, including state waters. The final rule should specify that this 
requirement is for federally managed species only as states may have 
requirements specific to state-managed species.
    Response: NMFS agrees. Submission of requests to collect broodstock 
is a requirement of the Gulf aquaculture permit, which allows the 
culture of only those federally managed species specified in Sec.  
622.105(b) of this rule. Nothing in this rule imposes requirements on 
the collection of broodstock of those species that are exclusively 
managed by the states.

[[Page 1780]]

However, if broodstock for allowable aquaculture species are harvested 
from state waters, Sec.  622.106(a)(16)(iv) of this rule requires that 
harvest also comply with all applicable state laws.
    Comment 79: NMFS should monitor broodstock collection and establish 
requirements to reduce or eliminate bycatch.
    Response: Permittees must submit a request to NMFS to collect 
broodstock which will allow NMFS to monitor broodstock collection. In 
this request, permittees will specify the number and size of broodstock 
proposed for capture and the gear used for capture and these requests 
will need to be authorized by NMFS. Although bycatch may occur during 
the capture of broodstock, the amount of bycatch is expected to be 
small and negligible relative to overall bycatch occurring in each 
fishery. NMFS may also deny a proposal to harvest broodstock if it was 
determined that broodstock collection activities would be inconsistent 
with FMP objectives related to bycatch.

Recordkeeping and Reporting Requirements

    Comment 80: Permittees should be required to monitor and report 
abundance and prevalence of ectoparasites on cultured and nearby wild 
fish.
    Response: NMFS disagrees. Ectoparasites are common in marine 
ecosystems and are generally not considered a significant enough threat 
to fish and human health to require additional monitoring and 
reporting. If new information indicates that ectoparasites are a 
greater threat to fish and human health than previously determined, the 
Council may require reporting of ectoparasites in the future.
    Comment 81: Permittees should be required to record and report 
stocking and harvest information.
    Response: NMFS agrees. Section 622.102(a)(1)(i)(A) and (D), require 
permittees to report stocking and harvest information, respectively, to 
NMFS at least 72 hours prior to these activities.
    Comment 82: The requirement to comply with all monitoring and 
reporting requirements of other Federal agencies' permits should be 
removed.
    Response: NMFS disagrees. Such requirements are necessary to 
maintain other Federal permits which, in addition to NMFS' permit, are 
necessary in order to operate offshore aquaculture facilities. Should 
permittees be unable to secure the appropriate permits or comply with 
applicable requirements, they would be unable to operate and thus their 
Gulf aquaculture permit could be revoked or suspended.
    Comment 83: The requirement to report landing transactions of 
cultured animals to NMFS is duplicative to state commercial trip ticket 
programs.
    Response: NMFS disagrees. Currently, state trip ticket programs 
only cover wild caught fish, and not cultured animals, therefore this 
information is not captured at the state level. Landings and 
transactions of cultured species harvested from the Gulf EEZ will be 
tracked using an electronic reporting system developed by NMFS. This 
system will allow NMFS to cross-check landings reported by permit 
holders with dealer transactions after cultured animals are sold.
    Comment 84: The final rule should require monitoring and reporting 
of environmental impacts such as the discharge of feed and waste as 
well as the use of antibiotics or therapeutants. The final rule should 
also set limits for water quality impacts.
    Response: NMFS disagrees. The use of feed, antibiotics and 
therapeutants is regulated by the EPA under the Clean Water Act and is 
not under the purview of NMFS. The EPA will establish limits for water 
quality impacts as part of their NPDES permitting process for 
individual aquaculture operations.

Socio-Economic Impacts

    Comment 85: The FMP and rule should assess the impacts of offshore 
aquaculture on Gulf local economies.
    Response: NMFS agrees. Section 7.5 of the FMP and the Final 
Regulatory Flexibility Act (FRFA) contained in this final rule assess 
the economic impacts of the FMP, as required by the Magnuson-Stevens 
Act, NEPA, Executive Order 12866, the RFA, and other applicable laws.
    Comment 86: Aquaculture operations create few jobs and negatively 
impact communities that depend on domestic wild fisheries (e.g., 
decreased market prices for wild species).
    Response: It is unknown at this time to what extent Gulf offshore 
aquaculture operations will directly compete with domestic wild 
fisheries regionally and nationally in the long term. Should offshore 
aquaculture directly compete with Gulf and other domestic wild 
fisheries in the long term, there could be significant adverse economic 
impacts on fishing communities (e.g., loss of jobs, and loss of revenue 
due to decreased prices, value of individual fishing quota (IFQ) 
shares. However, the likelihood of such adverse impacts occurring would 
depend on the price, quality, and many other factors influencing market 
demand of both farmed and wild-caught species.
    Nonetheless, foreign imports represent a significant amount of the 
current U.S. seafood, therefore, NMFS does not expect that domestically 
cultured species will have a significant economic impact on traditional 
fishing businesses or communities over the short term. Conversely, 
aquaculture operations could provide additional means of employment, 
thereby, benefitting local communities. Further discussion of the 
potential economic and social impacts of aquaculture can be found in 
Section 6.1.6 of the FMP.
    Comment 87: The Fishery Impact Statement (FIS) in the FMP is 
inadequate regarding the potential impacts of offshore aquaculture on 
fishing communities.
    Response: NMFS disagrees. The FIS in Section 9.0 of the FMP 
summarizes detailed discussion and analysis in Section 6.0 of the FMP 
of the expected impacts of all the FMP's permitting and operational 
requirements and restrictions on fishing communities. The FIS concludes 
permitting requirements and restrictions may adversely impact those who 
are denied access to approved aquaculture sites for traditional fishing 
and/or other purposes and create other adverse socioeconomic 
consequences. Also, the FIS concludes that required restricted access 
zones may reduce the area available for fishing and vessel transit.
    The potential economic and social impacts of the FMP on domestic 
fisheries are further detailed in Section 6.1.6 of the FMP. The FMP 
could adversely impact fishing communities by reducing prices for 
domestic wild caught product, and could benefit fishing communities by 
creating new jobs in local communities related to aquaculture 
operations.

EFH and Protected Resources

    Comment 88: The FMP and proposed rule fail to minimize the adverse 
effect of offshore aquaculture on EFH.
    Response: NMFS disagrees. NMFS completed an EFH consultation on the 
FMP on April 30, 2009, and concluded that the actions in the FMP would 
not adversely affect EFH because of environmental safeguards such as 
siting criteria (Sections 4.6 and 6.7 of the FMP) and aquaculture 
system requirements (Sections 4.5 and 6.6 of the FMP) which are 
intended to avoid and minimize adverse impacts of offshore aquaculture 
operations on EFH and other sensitive marine habitats. For example, 
offshore aquaculture would be prohibited from occurring in numerous 
areas identified as EFH such as HAPCs,

[[Page 1781]]

marine reserves, marine protected areas and coral areas, and other 
critical habitats would be considered during a case-by-case review of 
the proposed site. The requirement to have locating devices on offshore 
systems will also reduce long-term damage to EFH and marine resources 
that could result from derelict gear. Additionally, NMFS will review 
each individual Gulf aquaculture permit application to determine 
potential impacts on EFH and consult on individual activities with 
adverse impacts as required by the Magnuson-Stevens Act. As explained 
in the preamble of this final rule, and in Action 6 of the FMP, NMFS 
may deny an application for a Gulf aquaculture permit if it is 
determined that the use of a site or system, or the aquaculture 
operation as a whole, poses significant risks to EFH. Such a 
determination shall be based on consultations with NMFS offices and 
programs and siting and other information submitted by the permit 
applicant, including the required baseline environmental survey.
    Comment 89: NMFS failed to complete EFH and ESA consultations on 
the FMP.
    Response: NMFS disagrees. NMFS completed the EFH consultation 
processes on April 30, 2009, and determined that the actions in the FMP 
would not adversely affect EFH. NMFS reviewed that determination on 
April 30, 2013, following preparation of the draft SFPEIS and came to 
the same conclusion.
    NMFS completed an ESA consultation on the FMP on May 5, 2009, and 
determined that the action was not likely to adversely affect any 
listed species under NMFS' purview. After reviewing new information 
relating to the Deepwater Horizon MC252 oil spill that occurred in 
April 2010, NMFS' Sustainable Fisheries Division determined, in a memo 
dated April 18, 2013, that reinitiation of the consultation is not 
required. However, in June 2015, NMFS reinitiated ESA consultation to 
evaluate the effects of the FMP on three newly listed coral species, 
newly designated loggerhead sea turtle critical habitat, and proposed 
green sea turtle distinct population segments. That consultation, 
completed on June 24, 2015, similarly determined that the fishing 
activities conducted under the FMP are not likely to adversely affect 
these species or critical habitat.
    Comment 90: Aquaculture systems should be properly sited to avoid 
blocking migratory pathways or altering habitat of ESA-listed species.
    Response: As explained in the response to Comment 89, in the 
completed ESA consultations, NMFS concluded that the fishing activities 
conducted under the FMP will not adversely affect listed species or 
their critical habitat. However, when evaluating a proposed site, NMFS 
will evaluate and consider, among other things, the proximity of the 
site to marine mammal migratory pathways and important habitats and 
will evaluate each proposed aquaculture system and its operations for 
potential risks endangered and threatened marine species and can deny a 
system or specify conditions for using a system if it is determined to 
pose significant risk to these species.
    Comment 91: Aquaculture facilities may threaten marine animals, 
including ESA-listed species, by posing an entanglement risk or 
resulting in harassment or death. The final rule should address whether 
there are penalties for failure to remedy or redress entanglement or 
interaction issues. It should also mention if independent (i.e., third 
party) monitoring or auditing is required for entanglements or 
interactions, how often inspections for entanglements or interactions 
should occur and who will conduct these inspections.
    Response: NMFS disagrees that these facilities pose an entanglement 
risk or are likely to result in harassment or death of marine animals. 
As explained in the response to Comment 89, in the completed ESA 
consultations, NMFS concluded that the fishing activities conducted 
under the FMP will not adversely affect listed species. With respect to 
entanglement risks, the consultations explained that entanglement can 
be greatly reduced through the use of rigid, durable materials and by 
keeping lines taut, and that in practice, most offshore marine 
aquaculture facilities are constructed under these specifications. The 
consultations also noted that the FMP requires applicants to provide 
documentation sufficient to evaluate a system's ability to withstand 
physical stresses and that there is anecdotal evidence that supports 
the conclusion that interactions are rare. Consultation will be 
reinitiated if new information reveals entanglement or other effects of 
the action not previously considered or the identified action is 
modified in a manner that may cause effects to listed species in a 
manner or to an extent not previously considered.
    Safeguards to minimize risks to ESA-listed species and other 
wildlife are specified in Sec. Sec.  622.103(a)(4) and 622.105(a). For 
example, NMFS will evaluate each proposed site, and each proposed 
system and its operations, based on a number of factors including 
potential risks to endangered or threatened marine species, marine 
mammals, and wild fish or invertebrate stocks and can deny the use of a 
site or a system based on a determination of such significant risks or 
inconsistency with FMP objectives or other applicable law. The RA may 
also specify conditions for using an aquaculture system based on the 
determination of significant risk.
    As specified in Sec.  622.106(a)(9), permittees must regularly 
inspect approved aquaculture systems, including mooring and anchor 
lines, for entanglements or interactions with marine mammals, protected 
species, and migratory birds. Inspections will be conducted by the 
permittees and the frequency of inspections will be specified as a 
condition of their Gulf aquaculture permit. No independent (i.e., third 
party) monitoring or auditing is required for entanglement or 
interaction purposes.
    Permittees are required to report to NMFS specific details of any 
entanglement or interaction, within 24 hours, with marine mammals, 
protected species or migratory birds, including any actions being taken 
to prevent future entanglements or interactions, as specified in Sec.  
622.102(a)(1)(i)(G). Violating this requirement could result in NMFS 
modifying, suspending, or revoking a permit in accordance with subpart 
D of 15 CFR part 904. If new information reveals entanglement or other 
effects of the action not previously considered or the identified 
action is modified in a manner that may cause effects to listed species 
in a manner or to an extent not previously considered, NMFS will 
reinitiate Section 7 consultation.
    With respect to the potential harassment of marine mammals by fish 
farmers, NMFS notes that this would be a violation of the Marine Mammal 
Protection Act (MMPA). Permittees must comply with the MMPA and other 
applicable laws.
    Comment 92: NMFS should have completed a Biological Assessment or 
Biological Opinion on the FMP.
    Response: As explained in the response to Comment 89, NMFS 
completed ESA consultations that concluded that the fishing activities 
conducted under the FMP will not adversely affect listed species. These 
consultations included a Biological Assessment, which is defined at 50 
CFR 402.02 as the information prepared by the Federal agency concerning 
listing and proposed species and designated and proposed critical 
habitat that may be present in the action area and the

[[Page 1782]]

evaluation of potential effects of the action on such species and 
habitat.
    A Biological Opinion is required only when a proposed action is 
likely to adversely affect a listed species or designated critical 
habitat. Because NMFS determined the FMP is not likely to adversely 
affect ESA-listed species or designated critical habitat, a Biological 
Opinion was not prepared.
    Comment 93: The FMP and proposed rule do not assess whether the 
aquaculture facilities will ``take'' marine mammals or migratory birds.
    Response: Section 6.1.4 of the FMP discusses physical interactions 
of aquaculture facilities with wildlife, including marine mammals and 
birds.
    There is evidence to show that marine mammals can interact with 
aquaculture facilities. Marine mammals can become entangled in offshore 
aquaculture gear resulting in injury or death. Depredation (i.e., 
taking cultured fish from pens or other aquaculture gear) may occur at 
aquaculture facilities, which can lead to an increased risk of 
entanglement and may further result in retaliation by aquaculture 
operators. Some marine mammal interactions have occurred at aquaculture 
facilities currently operating in other areas of the United States. 
Documented interactions include depredation from aquaculture pens by 
wild bottlenose dolphins, aquaculture workers illegally feeding wild 
bottlenose dolphins, and a depredating wild bottlenose dolphin that 
became entangled by a fisherman fishing at an aquaculture pen.
    Aquaculture is considered a commercial fishery under the MMPA. As 
such, it will be designated on the MMPA's List of Fisheries (LOF) per 
section 118 of the MMPA. The Marine Mammal Authorization Program (MMAP) 
allows commercial fishing entities designated on the LOF to lawfully 
incidentally take marine mammals in a commercial fishery in certain 
cases: (1) A fishery classified as a Category I or II registers for and 
maintains a valid MMAP certificate from NMFS (50 CFR 229.4); (2) an 
observer is accommodated upon request (50 CFR 229.7); and (3) any 
incidental marine mammal mortality or injury occurring in a Category I, 
II, or III fishery is reported within 48 hours of the occurrence (50 
CFR 229.6). NMFS previously determined that aquaculture fishing 
activities would have no adverse impact on marine mammals and 
aquaculture was classified as a Category III fishery in the 2015 LOF 
(79 FR 77919, December 29, 2014). This classification indicates the 
annual mortality and serious injury of a marine mammal stock resulting 
from any fishery is less than or equal to 1 percent of the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock, while allowing that stock to reach 
or maintain its optimum sustainable population. While the listed 
fisheries do not specifically include the FMP or this rule, they 
involve gear similar to what is expected to be used in the Gulf.
    With respect to marine mammals that are listed under the ESA, NMFS 
has determined that the fishing activities conducted under the FMP are 
not likely to adversely affect these species because they are extremely 
unlikely to overlap geographically with anticipated aquaculture sites. 
Any ``takes'' of threatened and endangered marine mammals would trigger 
reinitiation of the consultation.
    In regard to migratory birds, there is currently no information 
that would indicate that offshore marine aquaculture will result in the 
``take'' of migratory birds. Section 622.102(a)(1)(i)(G) of this rule 
requires permittees to regularly inspect approved aquaculture systems 
and report, within 24 hours, any entanglement or interaction with 
marine mammals, endangered species, or migratory birds within 24 hours 
of the event. This reporting will allow NMFS to determine if there are 
unanticipated interactions with migratory birds, assess the severity of 
any interactions, and identify solutions for addressing and preventing 
interactions.
    Comment 94: Guidance documents should be reviewed regularly and 
include specific criteria such as the frequency of inspections for 
entanglement and interactions with protected species.
    Response: NMFS agrees that guidance documents should be reviewed on 
a regular basis and will coordinate with other federal agencies, as 
needed, to do so. NMFS disagrees that guidance documents need to 
include criteria related to the frequency of inspections for 
entanglement and other interactions with protected species because 
those criteria are case-specific, and will be determined on a case-by-
case basis and included as a condition in individual permits.

Escapements

    Comment 95: One commenter stated that NMFS should require reporting 
of all escapes, while another stated that NMFS should require reporting 
when escapes exceed 5 percent of the admixed stock (wild and cultured 
animals).
    Response: NMFS disagrees that it is necessary to require reporting 
of all escapes. Permittees are already required to report the escape, 
within a 24-hour period, of 10 percent of the fish from a single 
approved aquaculture system (e.g., one cage or one net pen) or 5 
percent or more of the fish from all approved aquaculture systems 
combined, or the escape, within any 30-day period, of 10 percent or 
more of the fish from all approved aquaculture systems combined. These 
amounts should allow operations to effectively quantify whether or not 
losses have occurred. Specifying lower percentages would make it 
difficult for permittees to quantify when and if escapement has 
occurred. In addition, the current reporting requirement for escapes is 
in line with escape reporting requirements of other states with 
aquaculture facilities (e.g., Maine).
    NMFS also disagrees that escapes should only be reported when they 
exceed 5 percent of the admixed stock for that species. The number of 
escapes needed to trigger reporting suggested by the commenter is much 
higher than that approved in the FMP and this final rule and could 
result in many more fish escaping without requiring permittees to 
report to NMFS.
    Comment 96: Escaped fish can displace other marine species and 
pollute wild fish genetics. Escapees will also compete with wild fish 
and other aquatic animals, and transmit disease and parasites to wild 
stocks.
    Response: NMFS agrees that escaped fish have the potential to 
negatively impact wild stocks. However, as discussed in section 6.1. of 
the FMP, impacts of cultured escapees on wild stocks are expected to be 
minimal because this final rule requires that only native species are 
allowed for culture and broodstock must be sourced from the same 
population or sub-population that occurs where the operation is 
located. Further, prior to stocking fish in an approved aquaculture 
system, the permittee must provide documentation certifying that the 
fish are pathogen free.
    Comment 97: Escaped fish should be treated as a pollutant, which 
would enable EPA to assess civil fines on facilities for escapes.
    Response: Neither the FMP nor this final rule address the 
definition of pollutant under the Clean Water Act or the EPA's 
authority to assess fines under that Act. Therefore, this comment is 
outside the scope of this rulemaking and will not be addressed further.

Fallowing of Aquaculture Systems

    Comment 98: Permittees should have access to several marine sites 
to fallow properly.
    Response: NMFS disagrees that several distinct aquaculture sites 
are

[[Page 1783]]

necessary to fallow properly. The Council determined, and NMFS agrees, 
that the requirement in Sec.  622.103(a)(3) of this final rule is 
sufficient to support any needed fallowing. That requirement specifies 
that permitted sites must be at least twice as large as the combined 
area encompassed by the aquaculture systems to allow operations to 
conduct fallowing at a different location within the designated site 
complex. If separate distinct sites were chosen for fallowing purposes, 
permittees would be required to repeat the siting process multiple 
times, which would include conducting multiple baseline environmental 
surveys and securing additional ACOE Section 10 and EPA NPDES permits. 
Thus, choosing separate fallowing sites would increase the time and 
cost associated with the permitting process while fallowing at a 
different location within the designated site complex would achieve the 
same environmental objective at less cost.
    Comment 99: Fallowing and rotation should be mandatory.
    Response: NMFS disagrees. Nutrient loading and other impacts of 
aquaculture on the surrounding environment can be reduced or eliminated 
with proper siting of an operation. Should water quality and benthic 
data indicate that fallowing is necessary to reduce or eliminate 
nutrient loading, NMFS recommends the permittee implement fallowing and 
rotation as a best management practice. Section 622.103(a)(4) of this 
final rule also allows the RA to deny the use of a proposed site that 
will inhibit the dispersal of wastes and effluents.

Genetically Engineered Animals

    Comment 100: Section 622.101(a)(2)(xv) of the proposed rule would 
require the applicant to certify that no genetically modified animals 
(changed to ``genetically engineered animals'' in Sec.  622.2 and 
throughout this final rule) or transgenic animals are used or possessed 
for culture purposes at the aquaculture facility. This language should 
specify that ``use'' specifically applies to the propagation process 
and indicate that it applies to the act of propagation regardless of 
where it occurs.
    Response: NMFS agrees the FMP and this final rule prohibit the use 
of genetically engineered and transgenic animals in propagation 
activities used to stock aquaculture facilities. The term ``aquaculture 
facility'', as defined in Sec.  622.2 of this final rule, includes all 
infrastructure used to ``hold, propagate or rear aquaculture species''. 
Thus, the prohibition on the ``use'' of genetically engineered and 
transgenic animals applies to the holding, propagation, or rearing of 
allowable aquaculture species regardless of where in the EEZ these 
activities occur.
    Comment 101: NMFS should develop specific standards for the use of 
non-native species and genetically engineered animals for aquaculture.
    Response: NMFS disagrees it is necessary to specify standards for 
use of genetically engineered animals because Sec.  622.105(b) of this 
rule prohibits the culture of non-native species and genetically 
engineered animals in the Gulf EEZ.
    Comment 102: Genetic testing should be required as a condition of 
permit approval to ensure that no genetically engineered animals are 
being cultured.
    Response: NMFS disagrees. The Council determined, and NMFS agrees, 
the certifications required as part of the application process, along 
with the authority provided NMFS to conduct genetic testing at any 
time, are sufficient to safeguard against genetic engineering 
activities. Specifically, applicants must certify that no genetically 
engineered or transgenic animals are used or possessed in the 
aquaculture facility, as specified in Sec.  622.101(a)(2)(xv) of this 
rule. Applicants must also certify that they agree to immediately 
remove cultured animals remaining in allowable aquaculture systems from 
the Gulf EEZ, as required by NMFS, if it is discovered that the animals 
are genetically engineered or transgenic, as specified in Sec.  
622.101(a)(2)(xii)(A). At any time, NMFS may sample cultured animals to 
determine genetic lineage and will order the removal of all cultured 
animals upon a determination that genetically engineered or transgenic 
animals were used or possessed at the aquaculture facility, in 
accordance with Sec.  622.108(a)(2).
    Comment 103: NMFS should prohibit the use of animals that have been 
artificially altered, including, those altered by changes in ploidy, 
chemical or radiation mutagenesis, any selective breeding or assisted 
reproductive technologies (ART).
    Response: NMFS disagrees that it is necessary to further restrict 
the use of artificially altered fish. The FMP and this final rule 
prohibit Gulf aquaculture operations from culturing genetically 
engineered or transgenic animals to reduce the potential impacts of 
cultured fish escapes on wild populations. Section 622.2 of this final 
rule defines the term ``genetically engineered animal'' to be 
consistent with FDA's definition, which is ``modified by rDNA 
techniques, including the entire lineage of animals that contain the 
modification''. This definition does not prohibit the use of animals 
that have been artificially altered by changes in ploidy, chemical, or 
radiation mutagenesis, or any selective breeding or assisted 
reproductive technologies, unless these animals contain genes that have 
been introduced or otherwise altered by modern biotechnology. 
Broadening this definition to encompass changes in ploidy, chemical or 
radiation mutagenesis, any selective breeding or ART would restrict the 
ability to produce specific phenotypes suitable for aquaculture. Such 
techniques are commonly used in aquaculture and are not expected to 
result in significant risks to wild populations should escapement 
occur.

Management Reference Points and Annual Production

    Comment 104: NMFS should assist the Councils in developing 
compliant processes by amending the National Standard 1 Guidelines 
under the Magnuson-Stevens Act to set forth a reasoned and 
scientifically rigorous process for determining reference points for 
aquaculture.
    Response: Comments regarding changes to the National Standard 1 
guidelines are outside the scope of this rulemaking. However, NMFS 
notes that it is necessary to amend the National Standard 1 Guidelines 
to specifically address reference points for aquaculture. Section 
600.310(h)(3) of National Standard 1 Guidelines recognizes that harvest 
from aquaculture operations may not fit the standard approaches to 
specifying reference points and management measures set forth in the 
guidelines and allows the Councils to propose alternative approaches 
for satisfying the National Standard 1 requirements. As explained in 
the preamble to the proposed rule, the Council selected an alternative 
approach to specifying reference points and management measures for the 
aquaculture fishery. NMFS has determined that the alternative approach 
selected by the Council is consistent with National Standard 1.
    Comment 105: Both the 64-million lb (29-million kg) annual 
production limit and 20-percent production cap on a business, 
individual or entity should be increased or removed.
    Response: The Council determined, and NMFS agrees, these production 
caps are needed to properly manage the development of the aquaculture 
fishery consistent with the provisions of the Magnuson-Stevens Act.
    Theoretically, the Gulf has an offshore aquaculture production 
capacity threshold which, if exceeded, could adversely affect wild 
stocks or the

[[Page 1784]]

marine environment (e.g., water quality and habitat). When developing 
the FMP, the Council considered capping annual production (or OY/ACL) 
at various levels, ranging from 16 million lb (7.3 million kg) to 190 
million lb (86 million kg), to constrain production below that 
threshold level.
    As explained in the FMP, the Council set the production cap equal 
to 64 million lb (29 million kg), which represents the average landings 
of all marine species in the Gulf, except menhaden and shrimp, during 
2000-2006. In the absence of specific information on the threshold 
level above which aquaculture could adversely affect wild stocks or the 
marine environment, the Council determined that setting an annual 
production cap based on the productivity of wild stocks would enable 
the fishery to proceed with caution while we obtain more information 
about the number and size of aquaculture operations, the production 
capacity of various aquaculture systems, and the environmental impacts 
and economic sustainability of aquaculture.
    Although 64 million lb (29 million kg) is likely substantially less 
than the yield that can be achieved by aquaculture operations over the 
long-term, this annual production cap is considered to be a short-term 
proxy and can be revisited by the Council at any time as new 
information becomes available. If planned production exceeds the cap in 
a given year, then NMFS will publish a control date to notify future 
participants that entry into the aquaculture fishery may be limited or 
restricted after the control date, and the Council will initiate review 
of the aquaculture program, and the annual limit, to determine whether 
the cap should be increased or some other action is appropriate.
    The Council also evaluated various entity-specific production caps, 
ranging from 5- to 20-percent of the OY/ACL, to ensure entities do not 
obtain an excessive share of the OY/ACL, consistent with National 
Standard 4 of the Magnuson-Stevens Act. The Council determined that 
capping the production of businesses, individuals, and other entities 
at 20 percent of the OY/ACL will effectively ensure against possible 
anti-competitive effects resulting from a small number of entities 
accounting for most or all of the aquaculture production. The 20-
percent entity-specific production cap will allow each business, 
individual, or other entity to produce up to 12.8 million lb (5.8 
million kg) annually, and may be revisited in the future as needed and 
appropriate.
    Comment 106: The FMP should discuss what data or processes are 
needed to determine a meaningful MSY and OY for cultured animals. OY 
must be set at a level equal to or less than MSY to account for ``any 
relevant social, economic, or ecological factors'' and it (like other 
reference points) must account for risk as directed by National 
Standard 6. The FMP should also discuss how overfished and overfishing 
status will be determined for cultured fish and how this will be linked 
to the status of wild stocks.
    Response: Section 4 of the FMP explains the challenge in applying 
management reference points and status determination criteria to 
cultured species because those parameters are designed to inform 
decisions about the level at which wild fish stocks can be routinely 
exploited without resulting in long-term depletion.
    As discussed in the FMP, the Magnuson-Stevens Act was written in 
part to establish the legal framework for managing wild fisheries 
resources of the United States, and many of the principles and concepts 
that guide wild stock management are not generally applicable to the 
management of an aquaculture fishery. However, aquaculture falls within 
the definition of ``fishing'' in the Magnuson-Stevens Act and is 
therefore subject to regulation by the fishery management councils and 
to the legal requirements to define management reference points and 
status determination criteria that will be used to assess fishery 
performance and status relative to the Magnuson-Stevens Act's mandates 
to prevent overfishing and achieve the OY from managed fisheries.
    The FMP explains that all animals cultured are intended for harvest 
and there is no need to leave cultured animals in aquaculture systems 
to support future generations and guard against long-term depletion. 
However, it is conceivable that some level of aquaculture in the Gulf 
could adversely impact wild stocks or the marine environment. 
Therefore, the Council determined the most logical approach was to use 
proxies and define management reference points and status determination 
criteria for the aquaculture fishery in a way that is intended to 
constrain production below that critical threshold level.
    The Council set the MSY of the Gulf aquaculture fishery at 64 
million lb (29 million kg). This value is based on the productivity of 
wild stocks and equals the average landings of all marine species in 
the Gulf except menhaden and shrimp during 2000-2006. In the absence of 
specific information on the threshold level above which aquaculture 
could adversely affect wild stocks or the marine environment, the 
Council determined that setting MSY based on the productivity of wild 
stocks would enable the fishery to proceed with caution while we obtain 
more information about the number and size of aquaculture operations, 
the production capacity of various aquaculture systems, and the 
environmental impacts and economic sustainability of aquaculture.
    NMFS guidance at 50 CFR 600.310 states OY should be based on MSY as 
reduced by social, economic, and biological factors, with the most 
important limiting factor being that the choice of OY and the 
conservation and management measures proposed to achieve it must 
prevent overfishing. To the extent that harvesting MSY would result in 
adverse impacts to resources in the Gulf, OY may be reduced to a level 
where such adverse impacts do not occur. Because MSY is specified at a 
level that is believed to avoid such impacts, and all animals cultured 
are intended for harvest, the Council determined there are no social, 
economic, or ecological factors that support setting OY below MSY at 
this time.
    Although 64 million lb (29 million kg) is likely substantially less 
than the yield that can be achieved by aquaculture operations over the 
long-term, the FMP explains that both the MSY and OY values are 
considered to be short-term proxies, which the Council may revise at 
any time in the future as the aquaculture fishery develops and provides 
additional information on the number and size of aquaculture 
operations, the production capacity of various aquaculture systems, and 
the environmental impacts and economic sustainability of aquaculture. 
This precautionary and adaptive approach is consistent with NMFS 
guidance for implementing National Standard 6 at 50 CFR 600.335.
    Also, because it is not possible to overharvest cultured animals, 
the Council determined the most logical way to assess the impacts of 
overharvest in aquaculture operations is not on the cultured fish 
actually harvested, but on the wild stocks remaining in the surrounding 
environment. The FMP specifies that NMFS will use overfished and 
overfishing criteria established in existing FMPs for wild stocks to 
determine if offshore aquaculture in the Gulf EEZ is adversely 
affecting wild fish populations, causing them to become overfished or 
undergo overfishing. If aquaculture operations are determined

[[Page 1785]]

to cause such effects, then the Council and NMFS will take action(s) 
that could include, but are not limited to, reducing aquaculture 
production levels, removing cultured animals containing pathogens, and 
reevaluating facility siting locations to avoid habitat degradation.

State Involvement

    Comment 107: NMFS must acquire Coastal Zone Management Act (CZMA) 
consistency determinations from all of the Gulf states before the final 
rule is issued.
    Response: NMFS agrees and determined the FMP is consistent to the 
maximum extent practicable with the enforceable policies of the 
approved coastal management program of Florida, Alabama, Mississippi, 
Louisiana, and Texas. This determination was submitted on February 24, 
2009, for review by the responsible state agencies under section 307 of 
the CZMA. Florida, Alabama, Mississippi, and Louisiana responded that 
the measures in the FMP are consistent with their coastal management 
program. Texas has previously informed NMFS that the state's Coastal 
Coordination Council no longer reviews fishery management issues, 
therefore, in accordance with the provisions of 15 CFR 930.41, NMFS 
presumes concurrence.
    Comment 108: NMFS should provide states advance notice of when 
animals are harvested or transported as these activities require 
transit across state waters. States should also have access to 
monitoring and reporting records required by NMFS, and should be 
promptly notified of any pathogen or escape event, or other event that 
may pose a risk to state resources.
    Response: NMFS will notify state law enforcement agencies in 
advance of aquaculture harvest and transport activities. Also, NMFS 
will notify the appropriate state agencies upon confirmation that a 
reportable pathogen discovery, major escapement event, or other event 
that may pose a risk to state resources, has occurred. Monitoring and 
reporting records are generally confidential under section 402(b) of 
the Magnuson-Stevens Act. However, the Magnuson-Stevens Act provides an 
exception that allows disclosure of confidential information to state 
employees, as necessary, to further the Department of Commerce's 
mission, subject to a confidentiality agreement that prohibits public 
disclosure of the identity or business of any person. The Magnuson-
Stevens Act also provides an exception for employees of states that 
have entered into a fishery enforcement agreement with the Secretary of 
Commerce and that agreement is in effect. All of the Gulf states have 
confidentiality agreements and joint enforcement agreements in place 
and would therefore be authorized access to monitoring and reporting 
records, as needed, and consistent with those exceptions.
    Comment 109: States should have the ability to approve or deny an 
application before NMFS' final approval.
    Response: NMFS disagrees. States may provide comments on individual 
permits during the public comment period, but as with other NMFS 
permits, states will not have the ability to approve or deny an 
application. The RA will consult with the Council during the public 
comment period on specific permit applications as required in Sec.  
622.101(d)(2) of this final rule. Each state has a representative on 
the Council and NMFS will consider Council input and comments received 
when deciding whether to approve or deny a permit.
    Comment 110: The proposed rule does not mention an ``opt-out'' 
provision for states, which means aquaculture may occur within 3 miles 
(5 km) of shore.
    Response: NMFS disagrees. The FMP and rule pertain only to the Gulf 
EEZ which starts at 3 nautical miles from shore off the coast of 
Louisiana, Mississippi and Alabama and 9 nautical miles from shore off 
the coast of Texas and the west coast of Florida. Although some Gulf 
states have promulgated regulations to conduct aquaculture in state 
waters (e.g., Florida) others would need to do so before establishing a 
permitting system for aquaculture operations.

Restricted Access Zones

    Comment 111: NMFS should remove the prohibition on commercial or 
recreational fishing inside the ``restricted access zone''. Permittees 
should have the ability to negotiate access to their sites for fishing 
purposes if they so choose.
    Response: The Council determined, and NMFS agrees, that restricted 
access zones are needed to afford some protection to an operation's 
equipment and the product being cultured, and to promote safety by 
reducing encounters between vessels and aquaculture equipment.
    Comment 112: Restricted access zones will displace commercial and 
recreational fishermen from large areas of the ocean. Aquaculture 
operations will also attract fish away from their usual habitats and 
this will impact fishermen who cannot fish for these species within the 
boundaries of restricted access zones.
    Response: NMFS recognizes that restricted access zones would 
displace fishermen from certain areas; however, the area utilized by 
the estimated 5-20 offshore aquaculture operations envisioned under the 
FMP is not expected to be significant considering the total area of the 
Gulf EEZ and is therefore not expected to result in significant 
displacement issues. NMFS will consider the location of a proposed site 
relative to traditional fishing grounds during the permit review 
process and may deny use of a proposed site if it may result in user 
conflicts with commercial or recreational fishermen. Information used 
by NMFS for siting a facility in regard to proximity to commercial and 
recreational fishing grounds would include, but is not limited to, 
electronic logbooks from the shrimp fishery, 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, including 
public comments on the application.
    Restricting access around a facility may protect species known to 
aggregate around aquaculture systems. However, the area encompassed by 
aquaculture systems is not expected to be significant compared to the 
Gulf EEZ as a whole. Although fishermen would be prohibited from 
fishing within restricted access zones, they could fish along the 
periphery of the operation, which would provide access to species which 
aggregate in the general area.
    Comment 113: The size of the restricted access zone should be 
determined by NMFS and not correspond to the coordinates specified in 
the ACOE Section 10 permit. The final rule should also specify how 
large restricted access zones should be and who will enforce them.
    Response: The Council determined, and NMFS agrees, that setting the 
restricted access zone corresponding to the coordinates on the ACOE 
Section 10 permit is appropriate.
    Per Sec.  622.2 of this final rule, an aquaculture facility is 
defined as an installation or structure, including any aquaculture 
systems (including moorings), hatcheries, equipment, and associated 
infrastructure used to hold, propagate, or rear allowable aquaculture 
species. The Council wanted to establish a narrow area around the 
aquaculture facility that would afford some protection to aquaculture 
equipment and cultured animals as well as well as increase safety by 
reducing encounters between vessels and aquaculture equipment. While 
the

[[Page 1786]]

ACOE Section 10 permit will delimit where aquaculture systems may be 
anchored to the sea floor, the Council action and this rule require 
that the applicant apply for an ACOE Section 10 permit that is twice as 
large as the combined area of the aquaculture systems in order to allow 
for best management practices such as the rotation of systems for 
fallowing. As such, the facility will be twice as large as the combined 
area of the aquaculture systems within it but the boundary of the 
facility will be the same as the boundary of the ACOE Section 10 permit 
because this final rule requires that the applicant apply for an ACOE 
permit of that size.
    NMFS anticipates that the ACOE will issue and enforce its Section 
10 permit under its own authorities. NMFS is establishing and will 
enforce the restricted access zone under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act. The two processes are 
separate but, because, NMFS is requiring the applicant to apply for an 
ACOE Section 10 permit of a size that is coextensive with the 
definition of a facility (including being twice the size of the 
combined area of the aquaculture systems within it), NMFS is choosing 
to use the ACOE Section 10 permit coordinates as the same coordinates 
for the restricted access zone.
    There is no predetermined size of the restricted access zone as it 
depends on the information contained in each permittee's Section 10 
permit. Authorized officers have the authority to enforce restricted 
access zones. An ``authorized officer'' is defined in 50 CFR 600.10 as: 
(1) Any commissioned, warrant, or petty officer of the USCG; (2) any 
special agent or fishery enforcement officer of NMFS; (3) any officer 
designated by the head of any Federal or state agency that has entered 
into an agreement with the Secretary and the Commandant of the USCG to 
enforce the provisions of the Magnuson-Stevens Act or any other statute 
administered by NOAA; or (4) any USCG personnel accompanying and acting 
under the direction of any person described in (1).
    Comment 114: NMFS should coordinate with the USCG in regards to 
siting offshore aquaculture facilities and marking ``restricted access 
zones.''
    Response: NMFS agrees and is working with USCG and other Federal 
agencies as part of the Interagency Working Group's Aquaculture 
Regulatory Task Force to coordinate the siting, review and permitting 
of offshore aquaculture facilities, including marking of offshore 
aquaculture facilities and restricted access zones.
    Comment 115: The USCG requests that Sec.  622.104(a) be amended to 
state that 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 ``and in addition, must 
ultimately be approved by the U.S. Coast Guard''. The USCG also 
requests that Sec.  622.104(c) be amended to state that the permittee 
must mark the restricted access zone with a floating device such as a 
buoy at each corner of the zone ``as authorized by the U.S. Coast 
Guard.''
    Response: NMFS disagrees that it is appropriate to require that the 
U.S. Coast Guard provide approval of the restricted access zone. As 
stated in the response to Comment 113, the Council determined, and NMFS 
agrees that a restricted access zone equal to coordinates on the ACOE 
Section 10 permit is appropriate because these coordinates define the 
boundary of the site where aquaculture operations may occur.
    NMFS also agrees with the second part of this comment and has made 
the suggested change to Sec.  622.104(c).

Changes From the Proposed Rule

    In June 2015, NMFS consulted with the Council on the following 
fourteen changes from the proposed to final rule. At that time, the 
representative from Florida expressed concern about using FDA's 
definition of ``genetically engineered animal'' and submitted a comment 
on behalf of the Florida Fish and Wildlife Commission (FWC). FWC's 
comment stated that FDA's definition of ``genetically engineered 
animal'' was too narrowly defined because it did not encompass the use 
of ``in vitro'' nucleic acid techniques. NMFS consulted with FDA and 
has determined that the definition of ``transgenic animal'' in the FMP 
and this final rule encompasses the use of ``in vitro'' techniques. 
Both ``genetically engineered'' and ``transgenic'' animals are 
prohibited for culture purposes in this final rule, therefore no change 
to the definition of ``genetically engineered animal'' is necessary.
    The term ``genetically modified organism'' has been revised to 
``genetically engineered animal'' throughout this final rule. The term 
``genetically engineered animal'' is a more scientifically precise 
term, more accurately describes the use of modern biotechnology and is 
consistent with FDA terminology. In addition, the definition for 
``genetically engineered animal'' has been added to Sec.  622.2 and the 
definition for ``genetically modified organism'' has been removed from 
Sec.  622.2. See NMFS response to Comment 2 above for the complete 
explanation.
    Also, in Sec.  622.2, the definition for ``aquaculture'' is 
modified slightly based on public comment. In the proposed rule, the 
definition stated, ``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.'' This wording can be interpreted to mean that 
to engage in ``aquaculture,'' both propagation and rearing need to be 
conducted. In this final rule, NMFS revises the definition of 
``aquaculture'' by changing an ``and'' to an ``or'' in two places in 
this definition in Sec.  622.2. This change clarifies that to engage in 
``aquaculture'' requires only that propagation or rearing need to be 
conducted.
    The definition of ``aquaculture facility'' in Sec.  622.2 is 
modified based on public comment. In the proposed rule, the definition 
stated, ``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.'' This wording can be interpreted to mean that 
all three of these activities need to be conducted (holding, 
propagating, and rearing) to be considered an aquaculture facility. 
However, NMFS has determined that only one of these activities needs to 
be conducted to be considered an aquaculture facility. Therefore, in 
this final rule, NMFS revises ``hold, propagate, and rear'' to ``hold, 
propagate, or rear.''
    NMFS is revising the definition of ``significant risk'' in Sec.  
622.2. When the Council reviewed and deemed this definition in February 
2013, it stated: ``Significant risk means is likely to adversely affect 
endangered or threatened species or 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, causing them to become overfished or 
undergo overfishing; or otherwise may result in harm to public health 
or safety, as determined by the RA.'' The proposed rule contained a 
modification to this definition with respect to endangered and 
threatened species, defining ``significant risk,'' in part, as ``likely 
to jeopardize the continued existence of endangered or threatened 
species or adversely modify their

[[Page 1787]]

critical habitat.'' The proposed rule also expressly solicited comments 
on this part of the definition. After considering public comments, and 
further internal review, NMFS has determined that the definition of 
``significant risk'' as it relates to endangered and threatened species 
should be modified to reflect the text originally deemed by the 
Council. As explained in the response to Comment 1, this change will 
better align the ESA-related criterion in the definition with the 
criteria for marine mammals, EFH, wild fish stocks and public health 
and safety.
    A prohibition has been added to Sec.  622.13 to state that it is 
unlawful to land allowable aquaculture species cultured in the Gulf at 
non-U.S. ports, unless first landed at a U.S. port. This prohibition 
was reasonably foreseeable because it was contained in the FMP and 
because the proposed rule included the requirement that a Gulf 
aquaculture dealer permit is necessary to first receive fish cultured 
at an aquaculture facility. Section 622.101(b) in the proposed rule 
provided that to obtain a Gulf aquaculture 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).'' The references to a 
state wholesaler's license and physical facility at fixed location in 
the state are a clear indication that those authorized to first receive 
allowable aquaculture species must be located in the U.S.
    In Sec.  622.101, the requirement in paragraph (a)(2)(viii) is 
moved to paragraph (d)(3) of that section in this final rule, because 
the requirement to submit to NMFS a copy of currently valid Federal 
permits (e.g., ACOE Section 10 permit, and EPA NPDES permit), prior to 
issuance of a Gulf aquaculture permit, better fits in the permit 
issuance paragraph of the permits section of the aquaculture 
regulations.
    In Sec.  622.101(a)(2)(xiii), language is added that when 
permittees provide certification information that all broodstock being 
used were originally harvested from U.S. waters of the Gulf, they must 
also certify that the broodstock came from the same population or 
subpopulation (based on the best scientific information available) 
where the facility is located, and that each individual broodstock was 
marked or tagged at the hatchery to allow for identification of those 
individuals used in spawning. This language was contained in the FMP 
and discussed in the preamble of the proposed rule; however, it was not 
in the proposed codified text. Based on public comment, NMFS determined 
this should be added to the regulations in the final rule. Also in this 
section, NMFS is changing ``were originally harvested'' to ``will be or 
were originally harvested.'' This is intended to clarify that the 
applicant is not required to know the location of broodstock harvest at 
the time the application is submitted to NMFS but still ensures any 
broodstock used in the future will be from U.S. waters in the Gulf and 
from the same population or subpopulation where the facility is 
located.
    In Sec.  622.101(d)(2)(ii)(B), the language is revised. In the 
proposed rule, grounds for denial of a Gulf aquaculture permit include, 
``based on the best scientific information available, issuance of a 
permit would pose significant risk to the well-being of wild fish 
stocks . . .'' However, in this final rule, NMFS has removed ``to the 
well-being of'' to be consistent with the language in the preamble 
which states that NMFS may deny a permit that would ``pose significant 
risk'' to marine resources.
    Throughout this final rule, NMFS changes ``baseline environmental 
assessment'' to ``baseline environmental survey.'' Some public comments 
indicated that using the term ``baseline environmental assessment'' is 
confusing to the public because the term ``environmental assessment'' 
is used to refer to a document that may be prepared under the National 
Environmental Policy Act. To make it clear that the ``baseline 
environmental assessment'' required by this final rule is not the same 
as an ``environmental assessment'' that may be prepared under NEPA, the 
term is revised to ``baseline environmental survey'' in Sec. Sec.  
622.101(a)(2)(v) and 622.103(a)(4) of the regulations. In addition, 
this final rule clarifies that permittees are required to submit 
baseline environmental survey data to NMFS in accordance with 
procedures specified by NMFS in guidance which will be available on the 
Web site when the rule becomes effective.
    Language has been added to Sec.  622.102(a)(1)(i)(A) regarding 
record keeping and reporting requirements for aquaculture facility 
owners and operators that permittees are to maintain and make available 
to NMFS or an authorized officer upon request a written or electronic 
daily record of the number of cultured animals introduced into and the 
total pounds and average weight of fish removed from each approved 
aquaculture system, including mortalities, for the most recent 3 years. 
This language was contained in the FMP and discussed in the preamble of 
the proposed rule but was not specifically contained in the codified 
text in the proposed rule. Therefore, NMFS adds this language to the 
regulations in this final rule.
    Paragraph (D) has been added to Sec.  622.102(a)(1)(i) regarding a 
harvest notification. NMFS is requiring that permittees record the 
date, time, and weight of cultured animals to be harvested and report 
this information to NMFS at least 72 hours prior to harvesting cultured 
animals from an aquaculture facility. This harvest notification is 
intended to aid law enforcement efforts. The notification would alert 
law enforcement in the case they wish to be present at the time of 
harvest at an aquaculture facility to verify that permittees are 
harvesting only cultured species and remain within their production 
cap. This 72-hour harvest notification was contained in the FMP and the 
preamble to the proposed rule but was not contained in the codified 
text in the proposed rule. NMFS adds it to the codified text in this 
final rule.
    Paragraph (H) has been added to Sec.  622.102(a)(1)(i) regarding 
feed invoices for aquaculture operations. The preamble in the proposed 
rule stated that the original or copies of purchase invoices for feed 
must be provided to NMFS or an authorized officer upon request, and be 
maintained for a period of 3 years. However, this requirement was not 
included in the codified text in the proposed rule because NMFS 
included the reference to the EPA regulations at 40 CFR 451.21, which 
NMFS believed covered these feed reporting requirements. After further 
evaluation, NMFS has determined that the 3-year requirement to maintain 
the feed purchase invoices is not contained in the EPA regulations; 
therefore, NMFS has added that requirement to the regulations in this 
final rule.
    In Sec.  622.104(c), the caveat ``as authorized by the USCG'' is 
added to the requirement that the permittee must mark the restricted 
access zone with a floating device such as a buoy at each corner of the 
zone. This is intended to clarify that the floating devices used to 
mark the restricted access zone must be authorized by USCG.
    NMFS is replacing the phrase ``landed ashore'' to the term 
``offload''. The proposed rule preamble stated that permittees 
participating in the aquaculture program would be allowed to 
``offload'' cultured animals at aquaculture dealers only between 6 a.m. 
and 6 p.m., local time. However, the codified text in the proposed 
rule, and language in the FMP, stated that species cultured at an 
aquaculture facility can

[[Page 1788]]

only be ``landed ashore'' between 6 a.m. and 6 p.m., local time, 
because at the time the FMP was written, it was determined that 
``land'' was the appropriate term. NMFS has determined that using the 
more precise term ``offload'' in this context is consistent with the 
objective of the requirement, which is to aid enforcement, while 
allowing vessels the flexibility to arrive at the dock at any time. By 
restricting offloading times, law enforcement will be able to ensure 
that vessels are landing only cultured species (e.g., secure tissue 
samples to be tested against broodstock DNA). Using the term 
``offload'' is also consistent with similar requirements in the Gulf 
red snapper and grouper/tilefish individual fishing quota programs. For 
the purposes of this requirement, NMFS is defining the terms 
``offload'' in Sec.  622.106(a)(14) to mean to remove cultured animals 
from a vessel.
    In addition to the changes described above, NMFS is making an 
administrative change to the permitting process in response to several 
comments regarding the permit duration, some of which stated that the 
initial 10-year permit term is not long enough to secure financing and 
others which stated that the permit term should be a shorter period to 
ensure permits are thoroughly reviewed on a more frequent basis. NMFS 
is modifying the requirements in Sec.  622.101(d)(3)(iii) to allow the 
applicant to defer initial issuance of a Gulf aquaculture permit for up 
to 2 years from the date the RA notifies the applicant of the decision 
to grant the permit. Specifically, NMFS is adding language to the end 
of this provision which states that the initial permit will be issued 
30 days after the RA notifies the applicant of the decision to grant 
the permit, unless NMFS receives a written request from the applicant 
before the end of the 30 day period to defer issuance of the permit. If 
the applicant requests a deferral, NMFS will include this information 
in the notification of permit approval published in the Federal 
Register as specified in paragraph (d)(2)(ii) and will publish a 
Federal Register notice upon permit issuance. Permit issuance will be 
deferred for two years from the date of the RA notification unless the 
applicant sends a written request to NMFS to issue the permit at an 
earlier date. This written request must be received by NMFS at least 30 
days prior to the date the applicant desires the permit to be 
effective.
    This change is intended to allow permit holders additional time to 
secure financing and prepare for production without changing the 10-
year effective period of the initial issuance. This change will not 
modify the requirement to have a valid permit to engage in the 
activities specified in the rule, such as deploying or operating an 
aquaculture facility in the Gulf EEZ, harvesting wild broodstock, and 
selling allowable aquaculture species. This change was reasonably 
foreseeable because the 10-year initial permit term has been subject to 
substantial public debate, putting interested persons on notice that 
NMFS may revise the regulations to address concerns that it may take 
several years for an applicant to be ready to start operations once the 
permit is granted while maintaining the 10-year permit term specified 
in the FMP and included in the proposed rule. The proposed rule did not 
specify when permits would be issued. The public may have inferred that 
a permit would be issued contemporaneously with the decision to grant 
the permit. However, the proposed rule provided for an extended review 
time and required that applicants submit complete application materials 
at least 180 days prior to the date they wished the permit to become 
effective. The proposed rule also required that the applicant obtain 
other Federal permits applicable to the proposed aquaculture site 
before issuance of the Gulf aquaculture permit. Therefore, the concept 
of a permit being issued and effective well after completion of the 
application was part of both the agency's and the public's deliberation 
on this issue.
    In the proposed rule, NMFS estimated the time to prepare a Federal 
Permit Application for Offshore Aquaculture in the Gulf of Mexico, 
including the supporting documentation (baseline environmental survey, 
assurance bond, contract with aquatic animal health expert, emergency 
disaster plan) to be approximately 33 hours. However, based upon public 
comment received, NMFS understands that the time to complete these 
requirements was underestimated. The time to complete the Federal 
Permit application for Offshore Aquaculture in the Gulf of Mexico 
remains 3 hours, however, NMFS has recalculated the time to complete 
the assurance bond, contract with aquatic animal health expert, and 
emergency disaster plan to be 39 hours total, not including the 
baseline environmental survey. NMFS estimates the time to complete the 
baseline environmental survey (collecting data and analyses) could take 
up to 320 hours (the proposed rule had included an estimate of 24 
hours), depending on the location and size of the proposed site. NMFS 
also added the following to the collections and associated public time 
burden table: Notification to delay permit issuance, Marine Mammal 
Authorization Program form (OMB Control No. O648-0292), pinger/location 
device, marking restricted access zone, and genetic testing 
requirements.

Classification

    The Regional Administrator, Southeast Region, NMFS, has determined 
that this final rule is necessary for the conservation and management 
of wild and cultured fisheries in the Gulf EEZ and is consistent with 
the FMP, the Magnuson-Stevens Act and other applicable law.
    This final rule has been determined to be significant, but not 
economically significant, for purposes of Executive Order 12866 because 
it may raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
E.O. 12866.
    In compliance with section 604 of the RFA, NMFS prepared a FRFA for 
this final rule. The FRFA uses updated information, when available, and 
analyzes the anticipated economic impacts of the final actions and any 
significant economic impacts on small entities. The FRFA is below.
    (1) A statement of the need for, and objections of, the rule.
    The description of the action, why it is being considered and the 
legal basis for the rule are contained in the preamble of the proposed 
rule and in the SUPPLEMENTARY INFORMATION section of the preamble of 
this final rule.
    (2) A statement of the significant issues raised by the public 
comments in response to the IRFA, a statement of the assessment of the 
agency of such issues, and a statement of any changes made in the 
proposed rule as a result of such comments.
    NMFS did not receive any comments in response to the IRFA.
    (3) The response of the agency to any comments filed by the Chief 
Counsel for Advocacy of the Small Business Administration in response 
to the proposed rule.
    NMFS consulted with the Small Business Administration's (SBA) Chief 
Counsel for Advocacy during drafting of the proposed rule; NMFS 
addressed the Chief Counsel's comments within the proposed rule. No 
comments were filed by the Chief Counsel in response to the published 
proposed rule.
    (4) A description of and an estimate of the number of small 
entities to which the rule will apply or an explanation of why no such 
estimate is available.
    First, this rule will apply to businesses that seek to locate

[[Page 1789]]

aquaculture or hatchery operations in the Gulf EEZ. These businesses 
engage in finfish farming and hatcheries (NAICS 112511) and shellfish 
farming and hatcheries (NAICS 112512). Second, this rule will apply to 
businesses that seek to purchase cultured animals from the Gulf EEZ. 
These businesses 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 superstores (NAICS 
452910), and full-service restaurants (NAICS 722110). Third, this rule 
will apply to businesses that engage in commercial and for-hire finfish 
and shellfish fishing (NAICS 114111, 114112, 114119, and 487210) in the 
Gulf EEZ because this final rule establishes restricted access zones. 
The SBA small business size standards for these industries are stated 
in the following table.

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

    At present, there are no businesses, large or small, with offshore 
aquaculture or hatchery operations in the Gulf EEZ and none that 
purchase cultured animals from the Gulf EEZ.
    Although unused oil and gas platforms in the Gulf EEZ could provide 
initial structures for offshore hatcheries, it is expected that 
hatcheries used by offshore aquaculture operations will be land-based, 
and the start-up and operating costs of offshore hatcheries, if any, 
would greatly exceed the SBA size standard of $0.75 million in average 
annual receipts.
    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 aquaculture which is no more than $0.75 million in average 
annual receipts. Although technological improvements, such as automated 
systems, selective breeding, and alternative feeds, have and will 
continue to reduce the above estimated costs, the changes have not 
reduced start-up and operating costs below the size standard.
    Based on the above estimates of the magnitude of initial investment 
and operating costs, NMFS expects that any businesses that would seek 
to develop and locate an aquaculture or hatchery operation in the Gulf 
EEZ would not be considered small businesses under the SBA size 
standards.
    As of March 31, 2015, there are 296 businesses with a Gulf and 
South Atlantic dealer permit. The numbers of vessels with a Gulf 
fishing permit are used to estimate that up to 7,352 vessels and 
businesses engaged in commercial fishing and up to 2,836 vessels and 
businesses engaged in for-hire fishing could be directly regulated by 
the rule. Although the actual number of businesses is expected to be 
less than those figures, NMFS expects a substantial number of the 
businesses that operate these fishing vessels have annual revenues less 
than the relevant SBA small business size standard, and, therefore, are 
small businesses.
    (5) A description of the projected reporting, recordkeeping, and 
other compliance requirements of the rule, including an estimate of the 
classes of small entities which will be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record.
    This rule will require any small business that intends to purchase 
farmed fish or shellfish from the Gulf EEZ at the first point of sale 
to apply for and be issued a Gulf aquaculture dealer permit. The 
additional annual cost to any of the existing dealers that applies for 
the aquaculture dealer permit will be $12.50, and the only additional 
information required by the dealer will be to check the box requesting 
a Gulf aquaculture permit.
    The cost to any small business that is not currently a dealer will 
be $50.00 annually. It is estimated that the average time required by 
these businesses to complete the application for an annual Gulf 
aquaculture dealer permit will be 20 minutes, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and reviewing the collection of 
information. The Gulf aquaculture dealer application requirements are 
consistent with existing dealer application requirements and no special 
skills are required to prepare a dealer permit application.
    This rule will also prohibit a small business's fishing vessel from 
fishing or transiting within the restricted access zone of an offshore 
aquaculture facility,

[[Page 1790]]

unless the vessel has a copy of that facility's aquaculture permit 
onboard.
    (6) A description of the steps the agency has taken to minimize the 
significant economic impact on small entities consistent with the 
stated objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule and why each of the other significant 
alternatives to the rule considered by the agency which affect the 
impact on small entities was rejected.
    As stated in the IRFA, NMFS expects this rule will not have a 
significant adverse economic impact on a substantial number of small 
entities. Although the rule could potentially reduce annual dockside 
revenues and increase transportation costs for small businesses in 
commercial and for-hire fishing if the zones are located in traditional 
fishing and transiting areas, NMFS may deny use of a proposed site if 
it is found to result in user conflicts with commercial or recreational 
fishermen or other marine resource users.
    Three alternatives, including the status quo no-action alternative, 
were considered for the action to establish a Gulf aquaculture permit. 
This 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 marine aquaculture and 
hatchery siting requirements and conditions. The 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 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.
    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. This rule will 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.
    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. This rule will 
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 implemented in this final rule was 
selected by the Council as a reasonable limit on production 
concentration while still enabling the potential realization of 
economy-of-scale benefits.
    This final rule contains collection-of-information requirements 
subject to the PRA, which have been approved by OMB under control 
number 0648-0703.
    The collections and the associated estimated average public 
reporting

[[Page 1791]]

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).
Notification to Delay Permit       10 minutes.
 Issuance.
Annual Report....................  10 minutes.
Baseline Environmental Survey....  320 hours.
Certification for Broodstock and   10 minutes.
 Juveniles.
Request to Harvest Broodstock....  30 minutes.
Broodstock Post-Harvest Report...  30 minutes.
Request to Transfer Gulf           3 hours.
 Aquaculture Permit.
Notification of Entanglement or    30 minutes.
 Interaction.
Marine Mammal Authorization        10 minutes.
 Program Form.
Notification of Major Escapement   30 minutes.
 Event.
Notification of Reportable         30 minutes.
 Pathogen Episode.
Notification to Transport          10 minutes.
 Cultured Juveniles to Offshore
 Systems.
Harvest and Landing Notification.  30 minutes.
Bill of Lading...................  5 minutes.
Dealer Permit Application........  30 minutes.
Dealer Report for Landing and      30 minutes.
 Sale.
Assurance Bond...................  16 hours.
Contract with Aquatic Animal       16 hours.
 Health Expert.
Emergency Disaster Plan..........  4 hours.
Fin Clip Samples.................  10 hours.
Broodstock Marking Requirement...  8 hours.
Pinger/Location Device...........  8 hours.
Marking Restricted Access Zone...  8 hours.
Genetic Testing..................  8 hours.
------------------------------------------------------------------------

    NMFS has recalculated the estimated time it will take to prepare a 
permit application and supporting documents (assurance bond, contract 
with a certified aquatic animal health expert, emergency disaster plan) 
to be approximately 39 hours (3 hours for the application, 16 hours 
each for the assurance bond and contract with certified aquatic animal 
health expert, and 4 hours for the emergency disaster plan). This 
estimate does not include the time necessary to complete a baseline 
environmental survey.
    NMFS estimates that the time to complete the baseline environmental 
survey (collecting data and analyses) could take up to 320 hours (the 
proposed rule had included an estimate of 24 hours), depending on the 
location and size of the proposed site.
    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.
    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 PRA, unless that collection-of-information displays a currently 
valid OMB control number.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as small entity compliance 
guides. As part of the rulemaking process, NMFS prepared a fishery 
bulletin, which also serves as a small entity compliance guide. The 
fishery bulletin will be sent to all interested parties.

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.

    Dated: January 4, 2016.
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 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. 1801 et seq.

0
2. In Sec.  600.725, in paragraph (v), in the table under the heading 
``IV. Gulf of Mexico Fishery Management Council'', the 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
------------------------------------------------------------------------
 
                                * * * * *
------------------------------------------------------------------------

* * * * *

[[Page 1792]]

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
                                     fishery
           FMP title                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 engineered animal'', ``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 or rearing, or 
attempted propagation or 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, or 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 engineered animal means 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).
* * * * *
    Significant risk means likely to adversely affect endangered or 
threatened species or 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.
* * * * *
    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 of this part 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 paragraphs 
(rr) and (ss) are 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) Land allowable aquaculture species cultured in the Gulf at 
non-U.S. ports, unless first landed at a U.S. port.
    (ss) 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.
622.101 Permits.
622.102 Recordkeeping and reporting.
622.103 Aquaculture facilities.
622.104 Restricted access zones.
622.105 Allowable aquaculture systems and species.
622.106 Aquaculture operations.
622.107 Limitation on aquaculture production.
622.108 Remedial actions.
622.109 Adjustment of management measures.


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's Web site at https://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/aquaculture/ therefore, a 
participant must have access

[[Page 1793]]

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 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 survey 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 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.
    (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) A description of the aquaculture system(s) to be used, 
including the number, size and dimensions of the aquaculture system(s), 
a description of the mooring system(s) used to secure the aquaculture 
system(s), and documentation of the aquaculture system's ability to 
withstand physical stress, such as hurricanes, wave energy, etc., 
including a copy of any available engineering analysis.
    (ix) A description of the equipment and methods to be used for 
feeding, transporting, maintaining, and removing cultured species from 
aquaculture systems.
    (x) 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.
    (xi) Documentation certifying that:
    (A) the applicant agrees to immediately remove cultured animals 
remaining in approved aquaculture systems from the Gulf EEZ as ordered 
by the RA if it is discovered that the animals are genetically 
engineered or transgenic;
    (B) the applicant agrees to immediately remove cultured animals 
remaining in approved 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 U.S. 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

[[Page 1794]]

animals remaining in approved 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)(xi)(A) and (B) of this section which causes the RA to order such 
removal.
    (xii) 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 approved 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.
    (xiii) Certification by the applicant that all broodstock, or 
progeny of such wild broodstock, used to provide juveniles to the 
aquaculture facility will be or were originally harvested from U.S. 
waters of the Gulf, and will be or were from the same population or 
subpopulation (based on the best scientific information available) 
where the facility is located, and that each individual broodstock was 
marked or tagged at the hatchery to allow for identification of those 
individuals used in spawning.
    (xiv) Certification by the applicant that no genetically engineered 
or transgenic animals are used or possessed for culture purposes at the 
aquaculture facility.
    (xv) 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.
    (xvi) 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.);
    (xvii) Any other information concerning the aquaculture facility or 
its operations or equipment, as specified on the application form.
    (xviii) 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]
    (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

[[Page 1795]]

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 with respect 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 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 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) 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.
    (ii) 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, must be submitted to NMFS.
    (iii) 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. The initial permit will be 
issued 30 days after the RA notifies the applicant of the decision to 
grant the permit, unless NMFS receives a written request from the 
applicant before the end of the 30 day period to defer issuance of the 
permit. If the applicant requests a deferral, NMFS will include this 
information in the notification of permit approval published in the 
Federal Register as specified in paragraph (d)(2)(ii) of this section 
and will publish a Federal Register notice upon permit issuance. Permit 
issuance will be deferred for two years from the date of the RA 
notification unless the applicant sends a written request to NMFS to 
issue the permit at an earlier date. This written request must be 
received by NMFS at least 30 days prior to the date the applicant 
desires the permit to be effective.
    (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 approved 
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 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 this subpart 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 date 
of a Gulf aquaculture facility permit and approximately 2 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

[[Page 1796]]

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 this 
subpart 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 this 
subpart must keep records and report as specified in this section. 
Unless otherwise specified, required reporting must be accomplished 
electronically via the 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 Web site or via phone. In addition, permittees 
are to maintain and make available to NMFS or an authorized officer 
upon request a written or electronic daily record of the number of 
cultured animals introduced into and the total pounds and average 
weight of fish removed from each approved aquaculture system, including 
mortalities, for the most recent 3 years.
    (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 approved aquaculture system (e.g., one cage or one 
net pen) or 5 percent or more of the fish from all approved aquaculture 
systems combined, or the escape, within any 30-day period, of 10 
percent or more of the fish from all approved 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 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 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 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) Harvest notification. Report the time, date, and weight of fish 
to be harvested from an aquaculture facility at least 72 hours prior to 
harvest. This information may be submitted electronically via the Web 
site or via phone.
    (E) 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 Web site or via phone. The person 
landing the cultured animals 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.
    (F) 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 submitted electronically via the 
Web site.
    (G) 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 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 
Web site on or before January 31 each year indicating no entanglement 
or interaction occurred.
    (1) Date, time, and location of entanglement or interaction.

[[Page 1797]]

    (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.
    (H) Feed invoices. The permittee must keep the original purchase 
invoices for feed or copies of purchase invoices for feed, make them 
available to NMFS or an authorized officer upon request, and be 
maintained for a period of 3 years.
    (I) 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 an authorized officer, upon request, monitoring reports related to 
aquaculture activities required by all other state and Federal permits 
(e.g., 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 an authorized 
officer 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 animals via the Web site 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 
animals 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 to NMFS or an authorized 
officer.
    (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 approved 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.
    (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 survey as specified in Sec.  
622.101(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 approved 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 fishery, 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 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, as authorized by the USCG. 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.

[[Page 1798]]

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 and are not genetically 
engineered 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 this 
part.
    (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 
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 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 approved aquaculture system 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 paragraphs (a)(4)(i) and (ii) 
of this section 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 approved 
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.  622.101(a)(2)(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 and 
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 survey parameters at the aquaculture 
facility consistent with NMFS' guidelines that will be available on the 
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 approved 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 
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.

[[Page 1799]]

    (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 (a)(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 offloading. For the purpose of this paragraph, 
offload means to remove cultured animals from a vessel following 
harvest from an offshore aquaculture facility. Cultured animals may 
only be offloaded between 6 a.m. and 6 p.m., local time.
    (15) Bill of lading requirement. Any cultured animals 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 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 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 approved 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 engineered 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 will be or were originally harvested from U.S. waters of the 
Gulf, will be or were from the same population or sub-population that 
occurs where the facility is located, and that juveniles stocked in 
offshore aquaculture systems 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.

[[Page 1800]]

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, aquaculture system requirements, siting 
requirements for aquaculture facilities, and recordkeeping and 
reporting requirements.
    (b) [Reserved]

[FR Doc. 2016-00147 Filed 1-11-16; 4:15 pm]
BILLING CODE 3510-22-P