Magnuson-Stevens Fishery Conservation and Management Act; Traceability Information Program for Seafood, 51426-51434 [2018-22039]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[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 https://

[[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 (https://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
----------------------------------------------------------------------------------------------------------------
               State                           Citation                       Summary of requirement
----------------------------------------------------------------------------------------------------------------
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