Emergency Regulations – Direct Sale Dealer License


250-RICR-90-00-15 INACTIVE RULE EMERGENCY RULE

15.1 Purpose

The purpose of this regulation is to establish a temporary Direct Sale Dealer License to address, on a limited basis, the economic hardship faced by the commercial fishing and seafood industries as a result of the COVID-19 pandemic.

15.2 Authority

These Rules and Regulations are promulgated pursuant to R.I. Gen. Laws Chapters 42-17.1; 20-2.1, and Chapter 20-2.2, R.I. Gen. Laws § 20-1-4, and in accordance with R.I. Gen. Laws Chapter 42-35.

15.3 Definition

See Part 1 of this Subchapter.

15.4 Application

The terms and provisions of these Rules and Regulations shall be liberally construed to permit the Department to effectuate the purpose of state law, goals, and policies.

15.5 Severability

If any provision of these Rules and Regulations, or the application thereof to any person or circumstances, is held invalid by a court of competent jurisdiction, the validity of the remainder of the Rules and Regulations shall not be affected thereby.

15.6 Superseded Rules and Regulations

On the effective date of these Rules and Regulations, all previous Rules and Regulations, and any policies regarding the administration and enforcement these regulations shall be superseded. However, any enforcement action taken by, or application submitted to, the Department prior to the effective date of these Rules and Regulations shall be governed by the Rules and Regulations in effect at the time the enforcement action was taken, or application filed.

15.7 Findings

A. The Department makes the following findings:

1. On or about January 30, 2020, the World Health Organization designated the novel Coronavirus, COVID-19, outbreak as a public health emergency of international concern;

2. Thereafter, the State of Rhode Island had documented cases of COVID-19;

3. Pursuant to Executive Order 20-02, issued on or about March 9, 2020, the State of Rhode Island declared a state of emergency in response to increasing COVID-19 cases documented within the State of Rhode Island;

4. On or about March 11, 2020, the World Health Organization declared COVID-19 a pandemic (the “COVID-19 Pandemic”);

5. Thereafter, starting on or about March 16, 2020, the State of Rhode Island has been issuing Executive Orders that created closures and restrictions impacting an evolving number of businesses and industry sectors including the commercial fishing and seafood industry in the State of Rhode Island;

6. As a result of the COVID-19 Pandemic and various Executive Orders, traditional seafood supply chains and markets have been disrupted, severely impacting all sectors of the RI fishing and seafood industry resulting in dire economic hardship for many RI commercial fishermen.

7. As a result of the COVID-19 Pandemic, the Department finds it necessary and in the public interest to make available to resident Rhode Island commercial fishermen, on a temporary basis, a Direct Sale Dealer License that allows resident Rhode Island commercial fishermen the ability to sell and transport for sale, certain marine species directly to consumers and licensed retail outlets.

15.8 Direct Sale Dealer License

A. General Requirements

1. All direct sale activities shall strictly adhere to all applicable health-safety directives and guidelines.

2. Unless otherwise noticed by the Director, all direct sales shall be conducted in a manner that is compliant with all social distancing guidelines and prevents customers from congregating, as well as any other requirements issued by the Governor. Those conducting direct sales must wear cloth face mask coverings during every transaction.

3. Applicants for a Direct Sale Dealer License shall complete the required forms as required by the Department.

4. The Direct Sale Dealer License shall be available to all resident Rhode Island license and resident landing permit holders who are authorized to harvest and land for sale allowable species under this section.

5. Individuals selling allowable species pursuant to the Direct Sale Dealer License must, at all times, possess and display, upon request, a current and proper license or landing permit as well as a current Direct Sale Dealer License.

6. Only the licensee/permittee, or a regularly employed crew member of the licensee/permittee, may sell allowable species under the Direct Sale Dealer License. To be eligible to conduct such sales, a crew member must first receive written authorization from the licensee/permittee. Such authorization shall be in the form of a type-written statement, signed and dated by the licensee/permittee that expressly authorizes the crew member to act on behalf of the licensee/permittee with regard to dockside sales. The statement shall further specify: the name of the crew member, the name of the vessel from which the sales are conducted, and the month and year that the crew member began working on the vessel. The statement shall be kept on the vessel and be available at all times for inspection by Department personnel. A crew member who is acting on behalf of a licensee/permittee must comply with all applicable regulations governing direct sales, as set forth herein, and the licensee/permittee shall be responsible for any violations of regulations by the crew member.

7. Licensees/permittees offering allowable species for sale pursuant to the Direct Sale Dealer License must meet all applicable and current Federal and State laws and regulations governing harvest and possession relating to the species being sold.

8. Licensees/permittees offering allowable species for sale pursuant to the Direct Sale Dealer License must meet all applicable and current Federal, State, and local laws and regulations governing retail sales operations, including but not necessarily limited to those governing taxation, signage, noise, and hours of operation.

9. All direct sale activities must be conducted in a manner consistent with applicable laws, regulations and polices governing port and marina operations.

10. Licensees/permittees offering allowable species for sale pursuant to the Direct Sale Dealer License may only sell allowable species that they legally harvested. Sales may only be conducted by commercial license holders authorized to commercially harvest the species made available for sale. The transfer of species between license holders is expressly prohibited.

11. There shall be no annual fee for the Direct Sale Dealer License during the effective time period of this emergency regulation.

12. The Direct Sale Dealer License is not subject to the application deadline provisions as set forth in § 2.6.7(C) of this Subchapter; as such, the license shall be available at any time during the year to holders of current and proper commercial fishing licenses and landing permits issued by the Department.

B. Federal Permit Holders

Pursuant to federal requirements, anyone holding a federal fishing permit (vessel-based) must sell their catches to federally permitted dealers. For those wishing to engage in direct sales from federally permitted vessels, a federal dealer’s permit must be obtained from NOAA Fisheries. Once a dealer’s permit is obtained, federally permitted fishermen may sell to themselves, by reporting the catch on a vessel trip report (paper or electronic) and reporting sales through the federal dealer reporting system.

C. Direct Sales of Live Lobsters and Crabs

1. Existing dockside sales of live lobsters and crabs shall be conducted pursuant to the existing dockside sales endorsement in § 2.7.6(I) of this Subchapter. In accordance therewith, direct sales of live lobsters and crabs can only occur dockside and can only be to the final consumer (i.e. the individual(s) who will be consuming the product).

2. Holders of a dockside sales endorsement who also obtain the Direct Sale Dealer License are authorized to engage in the additional following activities, subject to all applicable requirements:

a. Selling live lobsters and crabs directly to licensed seafood retailers dockside from the vessel on which they were harvested; and

b. Transporting and selling live lobsters and crabs to consumers and/or licensed seafood retailers from the vessel on which they were harvested.

3. Direct sales of molluscan shellfish are prohibited.

4. Additional Requirements

a. Lobsters and crabs must be kept shaded and cooled and must be alive at point of sale.

b. Deliveries are limited to product harvested from individual vessels and sold/donated and delivered by the individual harvester or affiliated crew members. The name of the vessel and license holder, provided in writing and legible, must accompany all deliveries.

D. Direct Sales of Finfish

1. Holders of a Direct Sale Dealer License are authorized to sell certain species of finfish direct to consumers and licensed seafood retailers dockside from the vessel on which they were harvested.

2. Sales of finfish may include any species of finfish legally harvested except those expressly prohibited pursuant to §§ 15.8(D)(3)(a) through (d) of this Part.

3. Prohibited Activities

a. Direct sale of histamine producing fish is prohibited. Histamine-producing fish include bluefish, tuna, mackerel, herring, mahi mahi, bonito, swordfish, marlin, sailfish, wahoo, anchovy, sardines, shad, menhaden; as well as amberjack, escolar, hind, jack, kahawai, milkfish, saury, scad, spearfish, sprat and trevally.

b. Direct sale of striped bass is prohibited.

c. Direct sales of molluscan shellfish are prohibited.

d. The transportation for sale of finfish to consumers and/or retailers is prohibited. All sales of finfish pursuant to a Direct Sale Dealer License must be sold dockside/from the vessel.

4. Additional Requirements

a. Direct sales of finfish shall be applicable only to whole fish, or fish that are headed/gutted, or live fish. Fish may be bled. No filleting or other processing may be done on the vessel.

b. Direct sales shall be applicable only to fish that have been caught/harvested the same day, that is caught and sold between midnight and 11:59 p.m. on the same day.

c. While on board the vessel, all fish to be sold must be protected from contamination, kept shaded, cooled, and/or on ice.

d. Knives/utensils and other food contact surfaces used to head, gut or bleed fish must be kept clean.

e. Fish species for sale pursuant to the Direct Sale Dealer License must be labeled accurately.

f. Any fish not sold on the day they were caught/harvested cannot be sold thereafter.

g. For sales undertaken pursuant to this authorization, holders of Direct Sale Dealer Licenses are exempt from the requirement set forth in § 7.10(E)(1) of this Subchapter that summer flounder be placed in standard 60- or 100-pound containers prior to their removal from the dealer’s premises or from the point of transfer.

h. Direct sales of finfish can only occur dockside and can only be to the final consumer (i.e. the individuals(s) who will be consuming the product) or to licensed seafood retailers.

E. Reporting

1. For all species subject to sale, standard harvester report is required (i.e. federal VTR's or state catch and effort reports), in accordance with the requirements set forth in § 2.7.4 of this Subchapter.

2. Harvester reports must be completed in full and be available for inspection prior to any species being sold pursuant to this license.

3. In addition, all sales made pursuant to this license must be reported to DEM via SAFIS eDR electronic dealer reports in accordance with standard dealer reporting requirements as set forth in § 7.8 of this Subchapter.

15.9 Donations

Direct donations of finfish by licensed commercial fishermen are subject to the same rules, regulations, and requirements as set forth herein.

15.10 Compliance and Enforcement

A. All provision of this authorization will be strictly enforced. Noncompliance may result in the suspension or revocation of the Direct Sale Dealer License as well as the commercial fishing license held by the individual.

B. As set forth in R.I. Gen. Laws §§ 42-17.1-1, 42-17.6-1 et seq., and Title 20, the Director shall have the power to issue enforcement notices, orders, administrative penalties or other requirements to ensure compliance with these rules and regulations. The Director may also provide written or verbal warning of his/her intent to undertake enforcement action, but is not required to do so.

C. Right to Request Administrative Hearing

1. Enforcement Actions: Any person affected by a decision of the Director for an enforcement action pursuant to these regulations may file and appeal within twenty (20) days after the date of receipt of the enforcement action in accordance with R.I. Gen. Laws Chapter 42-17.7 and Part 10-00-1 of this Title, Rules and Regulations for the Administrative Adjudication Division.

2. All requests for hearings on enforcement actions must follow the requirements set forth in the Rules and Regulations for the Administrative Adjudication Division, Part 10-00-1 of this Title.

15.11 Effective Period

A. Direct Sale Dealer Licenses will be valid and effective only for the as long as this emergency regulation remains in effect.

B. The Director has the authority to terminate the Direct Sale Dealer Licenses by notice.

Title 250 Department of Environmental Management
Chapter 90 Marine Fisheries
Subchapter 00 N/A
Part 15 Emergency Regulations – Direct Sale Dealer License
Type of Filing Adoption
Regulation Status Inactive
Effective 04/17/2020 to 01/01/2021

Regulation Authority :

R.I. Gen. Laws Chapters 42-17.1; 20-2.1
R.I. Gen. Laws Chapter 20-2.2
R.I. Gen. Laws § 20-1-4
R.I. Gen. Laws Chapter 42-35

Purpose and Reason :

The purpose of this regulation is to establish a temporary Direct Sale Dealer License to address, on a limited basis, the economic hardship faced by the commercial fishing and seafood industries as a result of the COVID-19 pandemic.

Editorial Notes :

The agency requested an extension to the effective dates allowed by R.I. Gen. Laws § 42-35-2.10 for this emergency adoption which was promulgated on April 17, 2020. The extension was granted in accordance with Executive Order 20-89 which permits extensions for sixty (60) days. As a result of this additional extension, the effective dates have been revised and the regulation will now become ineffective on February 11, 2021.

Brief statement of Reason for Finding Imminent Peril :

Proposal: Enactment of a new Direct Sales Dealer’s License, issued by DEM, authorizing licensed RI commercial fishermen to: 1) sell, and transport for sale, live lobsters and crabs direct to consumers and licensed seafood retailers from the vessel on which they were harvested; and 2) sell – but not transport for sale -- certain species of finfish direct to consumers and licensed seafood retailers from the vessel on which they were harvested. Purpose: Address the COVID-19-based economic hardships facing the RI commercial fishing and seafood industry, and food insecurities facing RI consumers, by supporting the development of new, local supply chains for RI seafood. Background: • All food sales in RI are subject to licensing by RIDOH. • Seafood Sales to Retailers: Generally, commercial fishermen landing in RI must sell their harvest to a buyer (i.e., a DEM-licensed dealer) who in turn must hold a DOH-issued wholesaler’s license to hold, process, transport, and sell that product to licensed retail establishments. Generally, the reverse is also true: licensed retail establishments can only buy from licensed wholesalers. Federal law (21CFR123), which has been incorporated by reference into RI law, establishes these requirements. Obtaining a wholesaler’s license generally requires Hazard Analysis Critical Control Point (HACCP) Certification and a land-based handling/storage facility. Fishermen are generally unable to meet the requirements for obtaining a wholesaler’s license; as such, they are generally unable to sell their harvests directly to retail establishments, and bound to selling to licensed wholesalers. • Seafood Sales to Consumers: Generally, anyone who sells food to the end user (consumer) must hold a DOH-issued retail license. A food retailer must comply with the RI Food Code. Fishermen are generally unable to meet the RI Food Code requirements; as such, they are generally unable to sell their harvests directly to consumers, and bound to selling to licensed wholesalers. As a matter of long-standing policy, DOH has deemed the direct-to-consumer sales of live lobsters and crabs to be a low-risk activity (because the animals are alive) and therefore tacitly endorsed DEM’s dockside sales license endorsement, which enables licensed commercial lobster fishermen to sell live lobsters and crabs dockside to consumers. New Regulatory and Policy Perspectives: • Seafood Sales to Retailers: A seafood HACCP exemption has been identified (21CFR123.3K). The exemption allows certain seafood to be sold from commercial fishing vessels to licensed retail establishments, without HACCP certification. In response, DOH has developed policy guidelines enabling certain low-risk, non-histamine-producing finfish to be sold directly from commercial fishing vessels to licensed retail establishments, provided the sales are subject to a new DEM-issued dealer’s license that incorporates the guidelines and ensures that landings are properly reported. In addition, DOH has acknowledged that the new DEM license can also authorize and enable licensed commercial fishermen to sell, and transport for sale, live lobsters and crabs to licensed retail establishments. • Seafood Sales to Consumers: Given the low risks associated with non-histamine-producing finfish, and live lobsters and crabs, DOH has reasoned that the same guidelines pertaining to direct sales to retailers can be extended to include direct sales to consumers – again, provided the sales are subject to a new DEM-issued dealer’s license that incorporates the guidelines and ensures that landings are properly reported. Need for Emergency Action: • The COVID-19 crisis has lent urgency to the need to establish and make available the new DEM Direct Sales Dealer’s License. • Traditional seafood supply chains and markets have been upended by the crisis, severely impacting all sectors of the RI fishing and seafood industry. Prior to the crisis, RI’s commercial fishery had largely supplied out-of-state markets. The collapse of those markets has forced large-volume wholesalers to close their doors, or cut back significantly. The loss of buyers has crippled many RI commercial fishermen. • As unemployed fishermen face economic hardship, RI consumers face food limitations. The traditional out-of-state supply chains that brought meat, seafood and other protein sources to store shelves, and restaurant menus, have been severely disrupted, resulting in limited availability of such vital food sources. • The new Direct Sales Dealer’s License will enable many RI commercial fishermen to get back to work, while providing RI consumers and RI restaurants with direct access to RI seafood. It will be of critical importance to the many participants in the inshore, day-boat fleet, whose season is about to get underway. It will provide a necessary boost to the local seafood economy. Strong Support from Industry • DEM and DOH have been fielding numerous calls from concerned fishermen, and others in the RI seafood industry, urging enactment of this emergency measure. DEM has conducted numerous conference calls with industry representatives, to review and discuss the nature of the proposal. There is broad support for moving forward with the new license opportunity, as quickly as possible. The only pushback has been from some seeking more expansive opportunities; the response is that the emergency proposal goes as far as DOH-imposed food-safety standards allow. Equity with Neighboring States: • Connecticut offers limited opportunities for commercial fishermen to sell their catch direct to consumers. Massachusetts offers a permit that enables commercial fishermen to sell live lobsters and crabs and certain types of whole raw fish from their vessels, and to transport live lobsters and crabs for sale to the public and select businesses. • RI’s new Direct Sales Dealer’s License will provide RI commercial fishermen with the footing they need to market their product in a manner similar to – and in some ways more effectively than – their counterparts from neighboring states. This status is of critical importance during these unprecedented times.