Emergency Regulations – Direct Sale Dealer License
|Title||250||Department of Environmental Management|
|Part||15||Emergency Regulations – Direct Sale Dealer License|
|Type of Filing||Adoption|
|Effective||04/17/2020 to 12/13/2020|
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 20-72 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 December 13, 2020.
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.