[Federal Register Volume 83, Number 197 (Thursday, October 11, 2018)]
[Proposed Rules]
[Pages 51426-51434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-22039]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 698
[Docket No. 180328324-8464-01]
RIN 0648-BH87
Magnuson-Stevens Fishery Conservation and Management Act;
Traceability Information Program for Seafood
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: Pursuant to the Commerce, Justice, Science, and Related
Agencies Appropriations Act, 2018 and the Magnuson-Stevens Fishery
Conservation and Management Act (MSA), NMFS is proposing a Traceability
Information Program for Seafood to establish registration, reporting
and recordkeeping requirements for U.S. aquaculture producers of shrimp
and abalone, two species subject to the Seafood Traceability Program,
also known as the Seafood Import Monitoring Program (SIMP). This
proposed rule, if finalized, would provide traceability for these
species from the point of production to entry into U.S. commerce.
Collection of traceability information for U.S. aquacultured shrimp and
abalone will be accomplished by electronic submission of data to NMFS.
This rule would require owners or operators of U.S. inland, coastal and
marine commercial aquaculture facilities (``producers'') to report
information about production and entry into U.S. commerce of shrimp and
abalone products. In addition, this rule would require producers to
register with NMFS and retain records pertaining to the production of
shrimp and abalone and entry of those products into U.S. commerce. This
proposed rule serves as a domestic counterpart to the shrimp and
abalone import requirements under SIMP, and will help NMFS verify that
U.S. aquacultured shrimp and abalone were lawfully produced by
providing information to trace each production event(s) to entry of the
fish or fish products into U.S. commerce. The rule will also decrease
the incidence of seafood fraud by requiring the reporting of this
information to the U.S. Government at the point of entry into U.S.
commerce so that the information reported (e.g., regarding species and
harvest location) can be verified.
DATES: Written comments must be received by November 26, 2018.
ADDRESSES: Written comments on this action, identified by NOAA-NMFS-
2018-0055, may be submitted by either of the following methods:
Federal eRulemaking Portal: Go to Docket Number NOAA-NMFS-
2018-0055, click the ``Comment Now!'' icon, complete the required
fields, and enter or attach your comments.
Mail: Celeste Leroux, Office of International Affairs and
Seafood Inspection, NOAA Fisheries, 1315 East-West Highway, Silver
Spring, MD 20910.
Instructions: All comments received are a part of the public record
and will generally be posted to http://
[[Page 51427]]
www.regulations.gov without change. All personal identifying
information (for example, name and address) voluntarily submitted by
the commenter may be publicly accessible. Do not submit confidential
business information or otherwise sensitive or protected information.
NMFS will accept anonymous comments. Enter N/A in the required
fields if you wish to remain anonymous. Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe portable document file (PDF) formats only.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to the NOAA Fisheries Office of
International Affairs and Seafood Inspection (IASI) and by email to:
[email protected] or fax to (202) 395-7285.
FOR FURTHER INFORMATION CONTACT: Celeste Leroux at (301) 427-8372 or
[email protected].
SUPPLEMENTARY INFORMATION:
Background
On March 15, 2015, the Presidential Task Force on Combating
Illegal, Unreported, and Unregulated (IUU) Fishing and Seafood Fraud
(Task Force), co-chaired by the Departments of Commerce and State,
published its action plan to implement Task Force recommendations for a
comprehensive framework of integrated programs to combat IUU fishing
and seafood fraud. As part of implementing the Task Force plan, NMFS
issued a final rule (81 FR 88975, December 9, 2016) for a risk-based
traceability program to track seafood from production to entry into
U.S. commerce known as the Seafood Traceability Program or Seafood
Import Monitoring Program (SIMP) (see 50 CFR 300.320-300.325). For
clarity, NMFS will refer to this program as SIMP throughout this
preamble, while the codified regulatory text at 50 CFR 300.320-300.325
uses the term ``Seafood Traceability Program.'' The final rule
included, for designated priority fish species, permitting, reporting,
and recordkeeping requirements relating to the importation of certain
fish and fish products to provide for traceability from point of
production to point of entry into U.S. commerce in order to prevent
illegally harvested or produced and misrepresented seafood from
entering into U.S. commerce. SIMP applies to thirteen species and
species groups, including shrimp and abalone, identified as
particularly vulnerable to IUU fishing and/or seafood fraud. However,
in the final rule establishing SIMP, NMFS stayed program requirements
for shrimp and abalone species indefinitely because there is commercial
scale aquaculture of shrimp and abalone in the United States and gaps
existed in the collection of traceability information for domestic
aquaculture, which is largely regulated at the State level.
In the SIMP final rule, NMFS explained that when the domestic
reporting and recordkeeping gaps have been closed, NMFS will then
publish an action in the Federal Register to lift the stay of the
effective date for Sec. 300.324(a)(3) of the rule pertaining to shrimp
and abalone. (81 FR at 88977-78, December 9, 2016).
On March 23, 2018, the President signed into law the Commerce,
Justice, Science, and Related Agencies Appropriations Act, 2018 (2018
Appropriations Act) (Pub. L. 115-141, Div. B). Section 539 of the Act
directs the Secretary of Commerce to lift the stay on the effective
date of the SIMP final rule for shrimp and abalone species and
establish a compliance date not later than December 31, 2018. On April
24, 2018, NMFS published a final rule lifting that stay, and
established a compliance date of December 31, 2018 for imports of
shrimp and abalone (83 FR 17762).
In addition to the requirement to include shrimp and abalone
species under SIMP, section 539 of the 2018 Appropriations Act directed
the Secretary of Commerce to ``. . . establish a traceability program
for United States inland, coastal, and marine aquaculture of shrimp and
abalone . . .'' and by December 31, 2018 to ``. . . promulgate such
regulations as are necessary and appropriate to establish and implement
the program.''
This proposed Traceability Information Program for Seafood
(Program) would establish registration, reporting and recordkeeping
requirements for domestic, commercial aquaculture producers of shrimp
and abalone species and products containing those species from the
point of production to entry into U.S. commerce. A producer, i.e., the
owner or operator of an aquaculture facility that produces shrimp or
abalone for human consumption, is responsible for the registration,
reporting and recordkeeping requirements of this Program. Section 698.2
defines producer and aquaculture facility. Consistent with the plain
language of section 539 of the 2018 Appropriations Act, the scope of
the Program will be limited to shrimp and abalone species unless and
until otherwise authorized by Congress. The requirements under this
proposed Program will fill the gaps identified during development of
the SIMP with respect to the collection of traceability information for
domestic aquaculture of shrimp and abalone species.
Section 539 further directs that information collected pursuant to
a regulation promulgated under this section shall be confidential and
shall not be disclosed except for the information disclosed under
section 401(b)(1) of the Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C. 1881a(b)(1). Section 1881a(b)(1) corresponds
to MSA section 402(b)(1). Thus, NMFS believes that the reference to MSA
section 401(b)(1) is a typographical error and the intent of Congress
was to cite to MSA section 402(b)(1). MSA section 401(b)(1) pertains to
fishing vessel registration, whereas 402(b)(1) addresses data
confidentiality which lends further support to the notion that Congress
intended to cite to section 402(b)(1). Accordingly, NMFS will apply the
data confidentiality provisions of MSA section 402(b)(1) to the data
required to be submitted under this proposed Program.
The proposed Traceability Information Program for Seafood consists
of three components: (1) Registration; (2) monthly reporting of
production events; and (3) recordkeeping requirements with respect to
both production events and chain of custody information from production
to the point of entry into U.S. commerce via sale or non-sale
transaction (including transfers between components of a vertically-
integrated enterprise). Application of the Program's reporting and
recordkeeping requirements would enable NMFS to determine the origin of
the domestic aquaculture shrimp and abalone products and confirm that
they were lawfully produced and not misrepresented. Coextensive with
the scope of SIMP, the Traceability Information Program for Seafood
traces fish and fish products from production to entry into U.S.
commerce. Fish or fish products regulated under the Traceability
Information Program for Seafood are shrimp and abalone species produced
by an aquaculture facility and products containing those aquacultured
species. Section 698.2 defines fish or fish products regulated under
this part, ``produce/production,'' and ``entry into U.S. commerce.''
I. Registration
In Sec. 698.4, NMFS proposes to identify aquaculture producers
(i.e., owners or
[[Page 51428]]
operators of aquaculture facilities) through a registration process
that will link each producer with a unique producer identifier. The
purpose of registration is not to permit or regulate production
activities, but rather to identify the person responsible for reporting
data to NMFS and recordkeeping for audit and inspection purposes. Use
of a unique producer identifier will ensure that data reported is
attributed to the correct producer. As proposed, all U.S. producers of
species covered by this program that annually enter product for human
consumption valued at $1,000 or more into U.S. commerce must
electronically register and submit their fee for registration via an
electronic reporting system established by NMFS. The amount of the one-
time registration fee, currently estimated to be $30.00, will be
calculated in accordance with procedures set forth in Chapter 9 of the
NOAA Finance Handbook for determining the administrative costs for
special products and services (http://www.corporateservices.noaa.gov/finance/Finance%20Handbook.html); the registration fee will not exceed
such costs. Because the electronic registration system has not yet been
completed, NMFS has not made a final determination about total
development costs and out-year costs for operations and maintenance.
Additionally, the number of users may vary from NMFS estimates as the
number of aquaculture operations expands or contracts. Consequently,
the calculation of the administrative cost recovery fee may be higher
or lower than the $30 estimate. NMFS requests comment on the impact
that registration fees may have on aquaculture operations that would be
subject to this rule.
NMFS is proposing $1,000 as the de minimis sales level for
exemption from the Program because it matches the U.S. Department of
Agriculture minimum sales threshold for reporting under the Census of
Agriculture. As producers are familiar with the Census of Agriculture,
adopting their threshold should allow producers to easily self-identify
their need to register and report under this Program. Additionally, it
is presumed that foreign aquaculture operations producing under this
annual value threshold would be serving local markets and not be
exporting product to the United States, thus they would not have
shipments subject to the documentation requirements of SIMP. NMFS
requests public comment to assist in the identification of alternative
thresholds for registration and reporting under this Program that would
exempt aquaculture facilities where all production for human
consumption is intended for direct sale to consumers, as this level of
small-scale commerce is not comparable to the scale of commerce
monitored under the Seafood Traceability Program.
A producer who is required to register only needs one registration
identifier. If the producer provides a valid and unique registration
identifier for its aquaculture facility that is currently in use by
another State or federal agency, NMFS may approve the use of that
alternative identifier, provided that NMFS can independently verify the
identity of the producer. NOAA seeks public comment on whether
identifiers assigned under other programs, such as the Data Universal
Numbering System (DUNs), the U.S. Food and Drug Administration's
Registration of Food Facilities, or a similar State or federal facility
registration, could be used for this purpose, and whether such an
approach would reduce the burden of registration on industry.
In addition to the requirements in this proposed rule, for some
species or products, permits from other federal or State agencies may
be required (e.g., U.S. Fish and Wildlife Service permits for products
of species listed under the Convention for International Trade in
Endangered Species). The Traceability Information Program for Seafood
does not supersede any other federal or State requirements.
The electronic reporting system to be established by NMFS will
consist of two parts. The first will be a publicly accessible
registration page where producers (an aquaculture facility owner or
operator) will provide basic information to identify their business:
Business name, Tax Identification Number, physical address,
and phone number
Farm physical address (if different than business physical
address)
Point of contact name, mailing address, email and phone number
Once a producer identifier has been designated via the NMFS system,
the producer can obtain login credentials to access the second part--a
data entry portal that will require a unique login for each user. After
logging into this site, the user will be able to report the required
data elements as described in section III below, Data for Reporting and
Recordkeeping.
II. Registration Renewal
Section 698.4(c) sets out a registration renewal requirement. As
explained below, this rule requires that the producer, or
representative acting on its behalf, submit reports to NMFS via an
electronic reporting system at monthly intervals. If a producer has no
reportable production events for an entire 12-month period, the
producer must so certify through the electronic registration and
reporting system established by NMFS in order to renew the producer's
registration. Producers that have submitted monthly reports would need
to certify that all applicable entries have been reported. Annually,
all producers would need to confirm their identifying business
information in order to renew their registration. Once the producer has
submitted all required certifications, registration renewals would be
automatic and at no additional cost to the producer. If the
registration lapses, the producer would have to re-register and pay the
cost-recovery fee.
III. Data for Reporting and Recordkeeping
The data reporting and recordkeeping requirements under this rule
would be in addition to any reporting and recordkeeping required by
States or other federal agencies. To align this proposed Program with
the SIMP data reporting requirements, NMFS proposes, in Sec. 698.5,
that producers required to register under the Traceability Information
Program for Seafood would be required to report information for each
entry into U.S. commerce of fish or fish products regulated under the
Traceability Information Program for Seafood that are intended for
human consumption. As outlined in Sec. 698.5(b), producers would
submit reports through NMFS's electronic registration and reporting
system and reports would include:
Identifying the aquaculture facility producing the fish or
fish products by providing a current, valid producer identifier.
Information on the fish or fish products produced: 3-alpha
Aquatic Sciences and Fisheries Information System (ASFIS) code; Product
weight and form (whole, head removed, etc.) at point of production and
at point of entry into U.S. commerce.
Information on where and when the fish were produced:
Location of aquaculture facility; Date of production (i.e., removal
from aquaculture facility).
Name of entity(ies) (processor, dealer, retailer) to which
fish was sold or delivered. For direct sales, the producer would need
to report information under the first three bullets above. The producer
would not need to report information about the consumer, just describe
where the fish was sold (e.g., on premises of the aquaculture facility,
roadside stand, or farmer's
[[Page 51429]]
market). See proposed Sec. Sec. 698.5(b) and 698.2 (defining ``direct
sale'' and ``entry into U.S. commerce'').
NMFS proposes that at monthly intervals producers would be required
to report information for each entry into U.S. commerce of fish or fish
products intended for human consumption from the previous month. For
example, a producer would be required to report each applicable entry
occurring in the month of May on or before the last day of June. If no
applicable entries occurred in a given month, no report to NMFS is
required. However, if a producer has no reportable production events
for an entire 12-month period, the producer must certify that through
the electronic reporting system established by NMFS in order to renew
its registration. See Registration Renewal section above.
In designing the reporting requirements for the Traceability
Information Program for Seafood, NMFS reviewed the temporal span of
harvests that contribute to an entry subject to SIMP requirements and
found that the temporal span for most entries was a month or less.
Thus, NMFS is proposing monthly reporting for the Traceability
Information Program for Seafood which provides a similar reporting
burden when compared to the SIMP and contributes to the objective of
the rule. NMFS seeks comment on whether producers would have production
to report every month and whether the monthly reporting frequency for
domestic producers is, in fact, comparable to the temporal aggregation
of harvests required under the SIMP.
Producers would also be required to keep supporting documentation
for the reports that are sufficient to trace the fish or fish product
from the point of production (i.e., removal from the aquaculture
facility) to entry into U.S. commerce as described in Sec. 698.6(a).
NMFS expects that typical supply chain records that are kept in the
normal course of business, including production logs, and transaction
records which include such information as the identity of the
custodian, the type of processing, and the weight of the product, would
provide sufficient information for NMFS to conduct a trace of the
supply chain. Such information must include records regarding each
custodian of the fish and fish product, including, as applicable,
processors, storage facilities, and distributors, sufficient to trace
the fish or fish product from the point of entry into U.S. commerce
back to the point of production and to verify the information reported
about entry into U.S. commerce. Section 698.6(a) establishes that
producers would be required to retain reports and supporting
documentation, in either paper or electronic format, for two years from
the date of the reports. Producers must make reports and supporting
documentation available for inspection by NMFS and must provide them to
NMFS upon request to support an audit as stated in Sec. 698.6(b)-(c)).
NMFS requests comment on the duration of the recordkeeping requirement
and the extent to which the two-year period is consistent with other
State and Federal recordkeeping requirements applicable to the business
operations of aquaculture facilities that would be subject to this
program.
NMFS proposes to mirror the requirements of this Program such that
its requirements are equivalent to those that apply to imports of
shrimp and abalone under SIMP. Thus, production of shrimp and abalone
species not intended for human consumption (e.g., fish produced for
research, grow out of post-larvae, broodstock, or environmental
management programs) would not be within the scope of this proposed
domestic Traceability Information Program for Seafood as stated in
Sec. 698.1(d), because SIMP is limited to imports of covered species
for human consumption. In addition, any producer that enters shrimp
and/or abalone valued at less than $1,000 total per year into U.S.
commerce is exempt from the registration, reporting, and recordkeeping
requirements of this Program as stated in Sec. 698.4(c).
IV. Audit and Inspection Mechanisms
To implement this regulation, business rules will be programmed
into the electronic registration and reporting system established by
NMFS to automatically validate that the producer has populated all data
fields in conformance with format specifications. Absent this
validation, the report submission would be rejected and the producer
would be notified of the deficiencies that must be addressed in order
for the report to be accepted.
Reports may also be subject to random or targeted audit by NMFS, as
provided in Sec. 698.6(b), in order to verify that the supplied data
elements are true, can be corroborated (e.g., production was authorized
by the applicable authority, processor receipts correspond to outputs/
deliveries), and are sufficient to demonstrate that products entering
U.S. commerce were not produced in violation of domestic law and are
not fraudulently represented. If a producer fails to provide requested
records to NMFS in a timely manner, or fails to provide information to
verify that covered products were lawfully produced and accurately
represented, the matter will be referred to NOAA Fisheries Office of
Law Enforcement for possible follow-up action.
Intersection With Other Applicable Requirements
In addition to the registration, reporting, and recordkeeping
requirements of this proposed rule, several States have specific
regulations applicable to aquaculture operations, typically including
requirements on permitting, certification, and registration. Table 1
contains information, by State, on existing regulations relevant to
traceability. To the extent practicable, and subject to applicable data
confidentiality laws, NMFS will work to minimize duplicative
requirements. For example, proposed Sec. 698.4(b) provides that NMFS
may approve the use of an alternative producer identifier obtained
through other Federal or State programs.
Table 1--Existing Aquaculture Registration and Reporting Requirements
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State Citation Summary of requirement
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Alabama............................ Statute: Ala. Code section Oyster leases required.
9-2-150 (2015).
California......................... Statute: California Fish & Aquaculture Registration is required for each
Game Code section 15400 facility devoted to the propagation,
(2006). cultivation, maintenance, and harvesting of
fish, shellfish and plants in marine,
brackish, and fresh water.
Connecticut........................ Statutes: Conn. Gen. Stat. Aquaculture-related permits are overseen by
section 26-194 (2013); the Department of Agriculture, Bureau of
Conn. Gen. Stat. section Aquaculture and the Department of Energy and
22-11i (2013). Environmental Protection. Permits are
required.
Delaware........................... Statute: Del. Code tit. 3 In addition to various permits needed
section 4 (2013); dependent on species, all aquaculture
Regulation: 7-3800 Del. operations must register with Delaware
Admin. Code (2014). Department of Agriculture--valid for 5 years.
Northern Marianas Islands.......... Statute: 2006 N. Mar. I. Site permit in coastal waters only.
Public Law 15-43.
[[Page 51430]]
Florida............................ Statute: Fla. Stat. section Aquaculture registration is required with the
597.004 (2017). Florida Department of Agriculture and
Consumer Affairs, annually.
Georgia............................ Statute: Ga. Code Ann. Aquaculture of some species requires permits
section 27-4-255 (2017). and for other species, registration with the
Georgia Department of Natural Resources.
Hawaii............................. Statute: Haw. Rev. Stat. Permit with record-keeping required for
section 187-3.5 (2012); aquaculture, including fish ponds through the
Regulation: Haw. Code R. Hawaii Department of Land and Natural
section 13-74-43 (1996). Resources.
Illinois........................... Regulation: Ill. Admin. Annual permit required, with a recordkeeping
Code tit. 17, pt. 870. component and annual reporting to the
Illinois Department of Natural Resources.
Indiana............................ Regulation: Aquaculture A permit is needed from Indiana Department of
Permit, 312 Ind. Admin. Agriculture, which requires records retention
Code 9-10-17 (2001). and inspection of the facility at any time.
Iowa............................... Regulation: Iowa Admin. Annual License required through Iowa
Code r. 571-89 (1992). Department of Natural Resources, which
includes an annual reporting requirement.
Louisiana.......................... Regulation: La. Admin. Code Permit applications currently available for
tit. 76, section 901-907. Catfish, Tilapia and Oysters. Other species
must enter a separate approval process for
permitting through the Louisiana Department
of Fish and Wildlife.
Maine.............................. Statutes: Me. Rev. Stat. Coastal aquaculture through 20 year leases
Ann. tit. 12, section 6072 from the Maine Department of Marine Resources
(2017); Me. Rev. Stat. with annual rent and record-keeping
Ann. tit. 7 section 1501 requirements.
(2017); Regulation: 13 188 Land-based aquaculture is licensed through the
Me. Code R. 2 (2018). Department of Agriculture, Conservation &
Forestry.
Maryland........................... Regulation: Md. Code Regs. Must be permitted before operating a facility
08.02.14 (2016). through the Maryland Department of Natural
Resources.
Massachusetts...................... Statute: Mass. Gen. Laws Facilities must be permitted and the permit
ch. 130, section 80; has a record keeping component and requires a
Regulation: 322 Mass. Code State Inspection prior to permitting. Both
Regs. 7.01-02 (2017); the Department of Environmental Protection
Guidance: Dept. of Food & and the Division of Fisheries and Wildlife
Agriculture, Mass. are involved in permitting.
Aquaculture Permits
Guidance Doc. (April 1,
1998).
Michigan........................... Statute: Mich. Comp. Laws Aquaculture facilities must be registered
section 286.871-884 (1996). annually with the Michigan Department of
Agriculture and Rural Development and are
limited to approve species. Operations may be
inspected by State Officials at any time.
Mississippi........................ Statute: Miss. Code Ann. Some types of aquaculture require a permit
section 79-22-13 (2013). from the Mississippi Department of
Agriculture and Commerce. A requirement of
the permit is record-keeping.
Nevada............................. Statutes: Nev. Rev. Stat. Aquaculture registration (same as farm
section 561.301; Nev. Rev. registration) is annual with the Nevada
Stat. section 576.128. Department of Agriculture.
New Hampshire...................... Statute: N.H. Rev. Stat. Aquaculture must be permitted through the New
Ann. section 211: 62-e Hampshire Department of Fish and Game.
(2016).
New Jersey......................... Statute: N.J. Rev. Stat. Aquaculture permit is required along with a
section 4:27 (1997). license for operations through both the
Department of Environmental Protection and
the Department of Agriculture.
New York........................... Regulation: N.Y. Comp. The New York Department of Environmental
Codes R. & Regs. tit. 6, Conservation issues annual permits that
section 48 (2018). require record-keeping.
North Carolina..................... Statutes: N.C. Gen. Stat. The North Carolina Department of Agriculture
section 63-106; N.C. Gen. and Consumer Services administers permits for
Stat. section 16A-113 allowable freshwater species. North Carolina
(2017). Division of Marine Fisheries authorizes
marine aquaculture leases with annual fees.
Ohio............................... Regulation: Ohio Adm. Code Annual Permit from the Ohio Division of
1501:31-39-01. Wildlife is required along with a
recordkeeping requirement.
Oregon............................. Statutes: Or. Rev. Stat. Annual permit for shellfish required through
Ann. section 215.213 the Oregon Department of Agriculture with
(2018); Or. Rev. Stat. record-keeping and an annual report
Ann. section 622.270. submission.
Rhode Island....................... Statute: 20 R.I. Gen. Laws Permit through the Coastal Resources
section 20-10 (2013); Management Council is required, and
Regulation: 250 R.I. Code automatically renewed annually. Other permits
R. section 40-00-1 (2017). may also be required.
South Carolina..................... Statute: S.C. Code Ann. Permit required for freshwater game fish
section 50-18-2 (2003). aquaculture through the South Carolina
Department of Natural Resources, with a
record keeping requirement. Annual permits
also required for shellfish.
Texas.............................. Statute: Tex. Agriculture A Texas Department of Agriculture license.
Code sections 134.011- Texas Natural Resource Conservation
134.023 (1999). Commission permit to dispose of wastewater.
The license is valid for two years and is
renewable.
Washington......................... Statutes: Wash. Aadmin. In addition to various permits for different
Code section 220-370-060 types of aquaculture, all aquatic farms must
(2017); Wash. Admin. Code register with the Washington Department of
section 220-370-090 (2017). Fish and Wildlife. Finfish farms must also
keep records.
----------------------------------------------------------------------------------------------------------------
State and federal regulations applicable to aquaculture operations
are not affected by this rule, thus proposed Sec. 698.3 provides that
the registration, reporting and recordkeeping requirements under the
Traceability Information Program for Seafood do not supersede any
requirements established under any other federal or State law.
NOAA seeks public comment on Table 1, including information on
additional, existing registration and reporting requirements and
mechanisms that might assign unique, alternate producer identifiers
referenced in Sec. 698.4(b) that could be recognized by NMFS for
purposes of the Traceability Information Program for Seafood.
Stakeholder Engagement
NMFS will hold public meetings to discuss implementation of the
Traceability Information Program for Seafood and address questions from
participants. Information on future Program implementation meetings and
transcripts of prior meetings and webinars can be found at https://www.fisheries.noaa.gov/about/office-international-affairs-seafood-inspection.
NMFS encourages stakeholders who may be affected by this rule, if
implemented as proposed, to participate in the public meetings and to
submit written comments (see ADDRESSES). In particular, NMFS seeks
comment on:
The assumption that the proposed recordkeeping incurs a marginal
cost given the background of Food and Drug Administration
recordkeeping requirements and that the proposed NMFS online
reporting system will minimize the reporting burden;
the assumption that the $1000 annual value threshold as a de
minimis level for exemption from the Program is, in fact, comparable
to the minimum size of farms contributing to imports of these
species under the SIMP;
[[Page 51431]]
the assumption that the registration/reporting system, if
operated at cost of $30 per registrant, is not a significant
business cost and, if the cost varies depending on final system
costs and number of users, what threshold fee would constitute a
significant cost;
whether the proposed recordkeeping period of 2 years is
inconsistent with other State or federal requirements applicable to
businesses affected by the Program; and,
whether the Program overlaps with State recordkeeping and
reporting programs, especially for abalone producers in California
and Hawaii.
Classification
This proposed rule is published under the authority of the
Commerce, Justice, Science, and Related Agencies Appropriations Act,
2018, Public Law 115-141, and the Magnuson-Stevens Fishery Conservation
and Management Act, 16 U.S.C. 1801 et seq.
The NMFS Assistant Administrator has determined that this proposed
action is consistent with the provisions of these and other applicable
laws, subject to further consideration after public comment.
This proposed rule has been determined to be significant for the
purposes of Executive Order 12866. NMFS has prepared a regulatory
impact review of this action, which is available from NMFS (see
ADDRESSES).
Regulatory Flexibility Act
NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) for
this proposed rule, as required by section 603 of the RFA, 5 U.S.C.
603. The IRFA describes the economic impact that this proposed rule, if
implemented, would have on small entities. A description of the
proposed rule, why it is being considered, and the objectives of, and
legal basis for this proposed rule are contained at the beginning of
this section in the preamble and in the SUMMARY section of the
preamble. A copy of the full analysis is available from the NMFS (see
ADDRESSES). A summary of the IRFA follows.
For U.S. commercial aquaculture producers of shrimp and abalone for
human consumption, this proposed rule would create a mandatory
registration, reporting and recordkeeping program. NMFS anticipates
that U.S. entities will not have any significant adverse economic
effects as a result of this action, because it does not pose any
significant new burdens with regard to existing reporting and
recordkeeping requirements or business practices. NMFS believes the
recordkeeping and reporting costs are accounted for in earlier U.S.
Food and Drug Administration (FDA) regulatory actions, which contain
more extensive recordkeeping requirements. See FDA Public Health
Security and Bioterrorism Preparedness and Response Act (Bioterrorism
Act) final rule, Table 23, 69 FR 71562 at 71646 and Table 26 at 71650
(Dec. 9, 2004); Food Safety Modernization Act regulations (21 CFR
1.361); and Seafood Hazard Analysis and Critical Control Point (HACCP)
regulations (21 CFR part 123). NMFS seeks comment on whether there
could be economic impacts that have not been evaluated in the
supporting analyses of this proposed rule, or that could be difficult
to anticipate.
NMFS proposes this action to comply with the 2018 Appropriations
Act and to collect or have access to additional data on domestic
aquaculture shrimp and abalone products to determine whether they have
been lawfully produced and are accurately represented, to deter
illegally-produced or misrepresented seafood from entering into U.S.
commerce, and as a domestic counterpart to the shrimp and abalone
species import requirements under the Seafood Import Monitoring
Program. These data reporting and recordkeeping requirements affect
producers of aquacultured shrimp and abalone products, many of which
are small businesses that commercially produce for entry into U.S.
commerce products valued at $1,000 or more per year. The registration,
electronic reporting and recordkeeping requirements proposed by this
rulemaking would build on current business practices (e.g., information
systems to document business transactions, facilitate product recalls,
maintain product quality, or reduce risks of food borne illnesses) and
are not estimated to pose significant adverse or long-term economic
impacts on small entities.
The proposed rule, if implemented, will directly affect entities
engaged in aquaculture of shrimp and abalone within the scope of the
Traceability Information Program for Seafood. The Small Business
Administration has established size criteria for all major industry
sectors in the United States including aquaculture operations. A
business involved in aquaculture is classified as a small business if
it is independently owned and operated, is not dominant in its field of
operation (including its affiliates), and has combined annual receipts
not in excess of $0.75 million North American Industry Classification
System (NAICS) code 112512 Shellfish Farming, 112519 Other Aquaculture,
and 112511 finfish farming and fish hatcheries) for all its affiliated
operations worldwide.
Based on the United States Department of Agriculture Census of
Agriculture, Census of Aquaculture 2013 and the Bureau of Labor and
Statistics' 2017 mean hourly wage for bookkeeping, NMFS has estimated
that this rule would potentially affect 66 producers, requiring each to
make a maximum of 12 reports annually ($19.76/hour at 0.5 hours per
report) to NMFS on production of the species subject to the
Traceability Information Program for Seafood. Total maximum costs for
registration and renewal, data entry, recordkeeping and data storage
per registrant are estimated by NMFS to amount to $150.21 (includes
$30.00 registration fee and registration labor cost) in the first year,
and $118.56 annually thereafter.
This rule has been developed to avoid duplication or conflict with
any other federal rules. To the extent that the requirements of the
rule overlap with other reporting requirements applicable to the
designated species, this has been taken into account to avoid
collecting data more than once. Given the fact that traceability
systems are being increasingly used within the seafood industry, it is
not expected that this rule will significantly affect the overall
volume of trade or alter trade flows in the U.S. market for fish and
fish products that are legally produced and accurately represented.
Based on limited financial information available to NMFS about the
affected entities, NMFS believes that most affected producers of shrimp
are small entities as defined by the Regulatory Flexibility Act (RFA);
that is, they are independently owned and operated and not dominant in
their fields of operation, and have annual receipts of no more than
$0.75 million. NMFS believes there are a few producers of abalone that
would be considered large entities. While there are a few large
entities, the one-time registration fee and cost of reporting are low
(maximum annual cost of $150.21). Therefore, NMFS has determined that
this proposed rule would affect a substantial number of small entities;
however, the issue of disproportionate effects on small versus large
entities does not arise in the present case.
With regard to the possible economic effects of this action, NMFS
believes that small entities will not be significantly adversely
affected by this action because it does not directly restrict
production or trade in the designated species and does not pose
entirely new burdens with regard to the collection and submission of
information necessary to comply with the monitoring program. While this
rule
[[Page 51432]]
would establish new reporting requirements, it will not require any
additional professional skill. Some of the data proposed to be
collected at entry into U.S. commerce or to be subject to recordkeeping
requirements is already collected by the seafood industry in order to
comply with food safety and product labeling requirements or to
document business transactions.
NMFS considered two regulatory action alternatives in this
rulemaking as well as a no-action alternative: NMFS considered
requiring registration for all shrimp and abalone aquaculture
producers, including those who sell under $1,000 per year of these
species, but determined that producers of such small amounts of shrimp
and abalone can be exempted from the Program without impacting its
overall integrity. Also, there is no verifiable data on firms under the
$1,000 threshold. The $1,000 threshold was chosen because it matches
the U.S. Department of Agriculture minimum sales threshold for
reporting under the Census of Agriculture. NMFS also considered
requiring reporting of all shrimp and abalone production regardless of
its intended use, but determined this was not necessary as the
selection of certain Harmonized Tariff Schedule codes for inclusion
under SIMP limits the scope of SIMP to just those seafood products
intended for human consumption and excludes products not intended for
human consumption. Recognizing that $1,000 in sales per year may result
in the inclusion of facilities not selling meaningful quantities of
shrimp and abalone into U.S. commerce, NMFS may finalize a higher
threshold. NMFS seeks comment on a threshold that both satisfies the
requirements of the Commerce, Justice, Science, and Related Agencies
Appropriations Act, 2018, while also minimizing burden on the smallest
producers.
In light of the information on total annual compliance cost
described above, NMFS believes the rule, if implemented will not reduce
profits for a substantial number of small entities. Therefore, NMFS
believes the proposed rule will not have a significant economic impact
on a substantial number of small entities, however, we seek public
comment on this analysis. NMFS prepared an Initial Regulatory
Flexibility Analysis to describe the economic impact this proposed rule
would have on small entities. A copy of this analysis is available from
NMFS (see ADDRESSES). NMFS requests comments, particularly focused on
the costs of compliance with the proposed reporting and recordkeeping
requirements.
Paperwork Reduction Act
This proposed rule contains a new collection-of-information
requirement subject to review and approval by OMB under the Paperwork
Reduction Act (PRA). This requirement has been submitted to OMB for
approval. The information collection burden for the requirements
proposed under this rule (i.e., registration or renewal; monthly
reports; recordkeeping and data storage; and provision of records of
supply chain information when selected for audit) as applicable to
production of shrimp and abalone species is estimated by NMFS to be 0.5
hour. Compliance costs are estimated to total a maximum of $1,980.00
($30.00 x 66) for the registration fees, no more than $7,824.96
($118.56 x 66) for data entry, and $0 for data storage as these records
are already required for tax and business purposes.
Registration Requirement: With the requirement to register as a
producer under this program, there would be approximately 66
respondents who would need approximately 5 minutes to fill out the
online registration form resulting in a total annual burden of 5.5
hours and a cost of $108.68.
Data Submission Requirement: Data to be submitted electronically
are, to some extent, either already collected by the trade in the
course of supply chain management, already required to be collected and
available for inspection under existing federal programs (e.g.,
Bioterrorism Act; Food, Drug and Cosmetic Act), or may be collected in
support of third party certification schemes voluntarily adopted by the
trade.
Public comment is sought regarding: Whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the appropriateness of monthly reporting for
achieving stated objectives; the accuracy of the assumptions used in
calculating the burden estimate; ways to enhance the quality, utility,
and clarity of the information to be collected; and ways to minimize
the burden of the collection of information, including through the use
of automated collection techniques or other forms of information
technology. Send comments on these or any other aspects of the
collection of information to the NOAA Fisheries Office of International
Affairs and Seafood Inspection at the ADDRESSES above, and by email to
[email protected] or fax to (202) 395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to 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.
List of Subjects in 50 CFR Part 698
Fisheries, Statistics, Aquaculture, Reporting and recordkeeping.
Dated: October 4, 2018.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 698 is proposed to
be added to read as follows:
PART 698--TRACEABILITY INFORMATION PROGRAM FOR SEAFOOD
Sec.
698.1 Purpose and scope.
698.2 Definitions.
698.3 Relation to other Federal and state laws.
698.4 Aquaculture facility registration.
698.5 Reporting.
698.6 Recordkeeping and audits.
698.7 Confidentiality and disclosure.
698.8 Prohibitions.
Authority: Pub. L. 115-141, Div. B, section 539; 16 U.S.C. 1801
et seq.
Sec. 698.1 Purpose and scope.
(a) This part implements a Traceability Information Program for
Seafood from the point of production to entry into U.S. commerce
pursuant to the Commerce, Justice, Science and Related Agencies
Appropriations Act, 2018, section 539 (Pub. L. 115-141, Div. B) and the
Magnuson-Stevens Fishery Conservation and Management Act (MSA).
(b) This Program establishes registration, reporting and
recordkeeping requirements for U.S. inland, coastal, and marine
aquaculture facilities that produce shrimp and abalone and complements
the Seafood Traceability Program established in Sec. 300.324 of this
title.
(c) The scope of the Program is limited to U.S. commercial
aquaculture facilities that produce shrimp and abalone for human
consumption for entry into U.S. commerce.
(d) Production of fish and fish products regulated under this part
not intended for human consumption, including production intended for
research, broodstock, or post-larval grow out, is outside the scope of
the Program.
[[Page 51433]]
Sec. 698.2 Definitions.
In addition to the terms defined in Sec. 600.10 of this title, and
in the MSA, the following definitions apply to this part. If a term is
defined differently in Sec. 600.10, or in the MSA, the definition in
this section shall apply.
Aquaculture facility means any farm with ponds, tanks or pools in
open air or in an enclosed structure, or a net pen or enclosure in open
water that produces for human consumption fish or fish products
regulated under this part.
Direct sale means the sale or offer for sale of fish or fish
products regulated under this part from an aquaculture facility,
whether on or off the premises of the facility, to an individual for
personal use.
Entry into U.S. commerce means direct sale or the sale or transfer
of custody of fish or fish products regulated under this part to a
first receiver, either directly or through a third party. Entry into
U.S. commerce includes changes in custody with no change in ownership,
e.g., the receiving or acquiring of fish or fish products from an
aquaculture facility by a processor or distributor that is owned by the
same person who owns the aquaculture facility.
First receiver means the person who first receives fish produced
from an aquaculture facility for any commercial purpose (e.g.,
processing, distribution or sale) other than a direct sale. The first
receiver may be a person affiliated with the aquaculture facility that
receives fish or fish products regulated under this part through a no-
sale transaction but does not include a person taking possession of
fish for the sole purpose of transportation.
Fish or fish products regulated under this part means shrimp and
abalone species produced by an aquaculture facility and products
containing those species.
Person has the same meaning as under section 3 of the MSA, 16
U.S.C. 1802.
Producer means the owner or operator of an aquaculture facility.
Produce/Production means remove/removal of fish from an aquaculture
facility for the purposes of entry into U.S. commerce.
Traceability Information Program for Seafood means the
registration, data reporting and recordkeeping requirements established
under this part.
Sec. 698.3 Relation to other Federal and state laws.
Registration, reporting and recordkeeping requirements under the
Traceability Information Program for Seafood do not supersede any
requirements established under any other federal or State law.
Sec. 698.4 Aquaculture facility registration.
(a) The producer of fish or fish products regulated under this part
must register the aquaculture facility through the NMFS Traceability
Information Program for Seafood electronic registration and reporting
system. Such registration is valid for a period of one year and must be
renewed annually. The electronic registration and reporting system will
assign a unique producer identifier. Producers must notify NMFS within
30 days of any change in their information submitted to or used in the
electronic registration and reporting system (e.g., business name,
addresses or contact information; if such changes are not reported to
NMFS within 30 days, the registration is invalid as of the 30th day
after such change.
(b) Alternative Producer Identifier. NMFS may approve the use of an
alternative producer identifier obtained through another Federal or
State program.
(c) Registration Renewal. Annually, all producers must confirm
their identifying business information in order to renew their
registration. Producers that have submitted monthly reports under Sec.
698.5 must certify that all applicable entries have been reported.
Producers that have had no reportable production events for an entire
12-month period must so certify through the electronic registration and
reporting system. If registration lapses, the producer must re-
register.
(d) De Minimis Exemption. Any producer that produces for entry into
U.S. commerce fish or fish products regulated under this part valued at
less than $1,000 per year is exempt from the registration requirement
of this section.
Sec. 698.5 Reporting.
A producer that is required to be registered under Sec. 698.4 must
report information regarding all entries into U.S. commerce of fish or
fish products regulated under this part.
(a) Frequency. The producer must submit monthly reports through the
NMFS electronic registration and reporting system, including all
entries into U.S. commerce of fish or fish products regulated under
this part that occurred during that calendar month. The report for a
monthly period is due on or before the last day of the next calendar
month. Producers are not required to submit reports for any month in
which there were no entries into U.S. commerce.
(b) Content. Reports must contain the details of each entry into
U.S. commerce, including producer identifier, the species (3-alpha
Aquatic Sciences and Fisheries Information System (ASFIS) code), the
date of production, date of entry into U.S. commerce, the production
volume, the unit of measure, the product form and weight at entry into
U.S. commerce, and business name, address and email and/or phone number
for the first receiver. For direct sales, the report need not contain
the name, address and email and/or phone number of the individual who
purchased the fish or fish products for personal use.
Sec. 698.6 Recordkeeping and audits.
(a) Recordkeeping. The producer must maintain a paper or electronic
copy of any report required under Sec. 698.5 and supporting
documentation for the report sufficient to trace the fish or fish
product from point of production to entry into U.S. commerce. Records
may include widely used commercial documents (e.g., records related to
production, sale, processing, shipment, cold storage, and
distribution). The supporting documentation must include records
regarding each custodian of the fish and fish product, e.g., including
processors, storage facilities, and distributors, sufficient to trace
the fish or fish product from the point of entry into U.S. commerce
back to the point of production and to verify the information reported
about entry into U.S. commerce. The producer must retain such reports
and supporting documentation in electronic or paper format for a period
of two years from the date of the report.
(b) Audit. Reports and supporting documentation described under
paragraph (a) of this section may be selected for audit in order to
verify the information submitted in the reports. To support such
audits, the producer must, upon request, make such reports and
supporting documentation available for inspection by NMFS or otherwise
provide them as requested by NMFS.
(c) Inspection. The producer must make all reports and records
required under paragraph (a) of this section available for inspection
by an authorized officer upon request.
Sec. 698.7 Confidentiality and disclosure.
All information and records required to be submitted under this
part shall be subject to the Magnuson-Stevens Act confidentiality
provisions and shall not be disclosed except as provided under section
402(b)(1) of the Magnuson-Stevens Act and part 600, subpart E of this
title.
[[Page 51434]]
Sec. 698.8 Prohibitions.
In addition to the general prohibitions listed at Sec. 600.725 of
this title, it is unlawful for any person to do any of the following:
(a) Violate any of the registration, reporting or recordkeeping
provisions of this part.
(b) Sell, offer for sale, or attempt to sell or offer for sale,
fish or fish products regulated under this part that were produced by
an aquaculture facility that has failed to register as required under
Sec. 698.4.
(c) Dispose of fish or fish products regulated under this part, or
any reports or supporting documentation required to be retained under
Sec. 698.6(a), after any communication from an authorized officer that
the aquaculture facility, or such reports or supporting documentation,
are to be inspected.
(d) Make any false statement, oral or written, to an authorized
officer concerning the production, purchase, sale, offer for sale,
receipt, acquisition, possession, transport or transfer of any fish or
fish products regulated under this part, or any attempt to do any of
the above.
(e) Provide false, incomplete or inaccurate information in the
registration required under Sec. 698.4 or reports required under Sec.
698.5 or falsify any reports or supporting documentation required to be
retained under Sec. 698.6.
(f) Fail to make reports or supporting documentation available for
inspection, as required under Sec. 698.6(c).
(g) Fail to make available, or otherwise produce, reports and
supporting documentation to support an audit, as required under Sec.
698.6(b).
[FR Doc. 2018-22039 Filed 10-10-18; 8:45 am]
BILLING CODE 3510-22-P