Asking what the subject should be, before any rule exists — a request for information on where to look for aquaculture sites

1A document that is not a proposed rule

The Federal Register brings rules and proposed rules to mind. This document is neither. It gathers material for a decision at a point where nothing has been decided. The agency is working to identify waters suited to commercial aquaculture as Aquaculture Opportunity Areas, and it is asking the public for data, views, analysis and suggestions in order to choose which region to take up next.

2What the Commerce Department actually files

Commerce is the department that appears most often across the Federal Register records held here. Yet only a little over one in ten of its documents is a rule or a proposed rule. The rest are notices, including the kind seen here, which gathers material for a decision still to come. The intuition that a department filing more documents is a department issuing more rules does not hold.

3Questioning the scope before anything is settled

1. 1The basisAn executive order of 7 May 2020 directs the Secretary of Commerce to identify suitable areas
2. 2The requestAsk the public for information on which region should be taken up next
3. 3The combinationWeigh the comments against consultation, coordination and spatial analysis
4. 4The identificationSettle the areas in coordination with other federal agencies, the fishery management councils, and state, jurisdictional and tribal governments

What deserves attention is that the question here is not whether aquaculture should be allowed but which places will be considered. Once the scope is fixed, later argument proceeds inside it. The earlier the stage, the more room there is to move the subject itself, and yet documents at this stage are inconspicuous and rarely reach the people who would care about them.

4Naming who will be consulted

The notice states that coordination will run not only across federal agencies but with the Regional Fishery Management Councils and with state, jurisdictional and tribal governments. Use of the sea competes broadly with fishing, navigation, conservation and coastal communities, so no single agency can settle it alone.

Listing the counterparts in advance also gives anyone a handle for checking later whose views actually made it in.