[The Government] wants to prevent illegal, unregulated, unreported fishing—they have an acronym for it, and when the government gets acronyms for things, watch out! Here it comes.
Addressing IUU Fishing and Seafood Fraud – Enforcement
Those of you who have been following my coverage of the 2015 Seafood Expo North America (SENA15) know I chose to focus on aquaculture this year for reasons I explained in an earlier blog entry. Those who are regular readers of The Good Catch Blog know my usual beat is wild fisheries, and while I plan to be talking about fish farming more this year, I will still be primarily focused on wild-harvest. As such, I was keen to hear the U.S. Government’s announcement at SENA15 regarding the action plan formulated by the Presidential Task Force on Combatting Illegal, Unreported and Regulated (IUU) Fishing and Seafood Fraud.
The Action Plan, which will be implemented under the leadership of the Departments of Commerce and State, lays out a broadly coordinated plan that has been called “historic” and “unprecedented.” While there has been a great deal of improvement in domestic fisheries from bait to plate, upward of 93 percent of seafood consumed by Americans is imported, and there remain significant concerns about many of the fisheries from which those imported fishes originate. As such, the U.S. Government has strong incentive to make sure the majority of seafood Americans purchase is not undermining our own efforts at home when it comes to environmental and socio-economic sustainability.
“The Obama Administration is committed to working to ensure that America’s fishing industry remains the heart and soul of coastal communities across the country,” said U.S. Deputy Secretary of Commerce Bruce Andrews during the announcement at SENA15. “The steps the United States has taken to be a leader in environmental stewardship are paying off. However, our nation’s fisheries remain threatened by illegal, unreported, and unregulated fishing and seafood fraud, which negatively affects our markets. The Task Force’s new strategic plan will aggressively implement recommendations to guarantee that U.S. fishing fleets remain competitive in the global economy.”
Addressing IUU fisheries on a global level is not without its challenges, and although the Action Plan is the result of a multistakeholder effort, a few of the specifics announced at SENA15 have received mixed reviews from the fishing industry. In particular, some in the fishing industry worry that the manner in which the Government plans to address the challenges related to enforcement could have the unintended consequence of harming the US seafood industry.
Why Address IUU and Seafood Fraud?
In general terms, addressing IUU fishing and seafood fraud is good for fisheries, fishers and anyone engaged in a legal seafood industry. At the broadest level, IUU fishing and seafood fraud threatens global food security, as an estimated 2.5 billion people rely on seafood for food and nutrition. IUU fishing also threatens fish stocks and ecosystems, as well as the fisher and fisher communities who depend on those ecosystems. In addition, IUU fishing also provides a conduit for a host of other illegal activities, including human trafficking and smuggling of contraband such as drugs and weapons.
When it comes to seafood fraud, seafood is the most traded food commodity globally, and fraud can result in economic losses in the billions of dollars. When seafood products are mislabeled in an effort to mislead consumers regarding species, origin or quality, it undermines the economic viability of trade. There are also health concerns associated with mislabeled products. It is estimated that at least 25 percent of seafood sold in the U.S. is mislabeled.
While there are already laws in place to address many activities resulting from IUU fishing and seafood fraud, many of these laws are, according to government officials, difficult to enforce. In addition, the Government has argued, “several critical [domestic] statutes lack robust civil judicial and criminal enforcement authority, adequate administrative penalties, or appropriate forfeiture authority to address IUU and fraudulently marketed seafood products.” As one government official commented off the record regarding the Action Plan and enforcement, “We’re going to give the law some sharper teeth.”
Questions Regarding Enforcement
Five of the 14 recommendations laid out in the Action Plan concern enforcement, and, not surprisingly, there are some concerns by those in the fishing industry about those recommendations.
“All I’ve got to say,” said Robert Becerra, during a SENA15 panel presentation, “is that when these regulations from the Presidential Task Force come into effect, hold onto you wallet, hold onto your shirt, hold onto your shoes and hold onto your pants because there’s going to be all sorts of new compliance requirements that are going to come on board that, at least for smaller companies especially, are going to be very, very difficult.” Becerra is a Florida Bar Board Certified Specialist in International Law specializing in civil and white collar criminal litigation in matters involving international trade.
The five recommendations in the Action Plan that deal with enforcement are:
- Recommendation 8 – Information Sharing
- Recommendation 9 – Customs Mutual Assistance Agreements
- Recommendation 10 – Species Name and Code
- Recommendation 11 – State and Local
- Recommendation 12 – Enforcement Authorities
The last one, Enforcement Authorities, was the one that received a fair amount of attention and criticism during SENA15. Acknowledging there are “crucial gaps” in federal authorities that “prevent agencies from monitoring the entirety of the seafood supply chain,” the Plan states:
Agencies need to leverage existing authorities through stronger coordination and, where necessary, seek additional enforcement tools to address growing concerns over IUU fishing and seafood fraud, in particular the illegal entry of seafood products into U.S. commerce.
Coordinating across agencies such as the Department of Homeland Security, the Food and Drug Administration, the National Oceanic and Atmospheric Administration and the United States Department of Agriculture will allow for more effective inspection, verification and enforcement activities throughout the supply chain. The Plan states that “the Magnuson-Stevens Fishery Conservation and Management Act (MSA) prohibits the import of fish taken in violation of foreign law but effective enforcement of this prohibition requires the cooperation and coordination with border control agencies such as ICE HSI and CBP.”
The National Fisheries Institute objects to the Government’s premise that it doesn’t already have the enforcement authority it needs to combat IUU fishing and seafood fraud. “[Government agencies] should be coordinating already,” said NFI spokesman Gavin Gibbons. “In fact, we hope these agencies have been coordinating all along. I am certain quite a few taxpayers would question why federal agencies need a task force to mandate such harmonization.”
Increased Penalties – Lacey & RICO
In addition, the Action Plan calls for “tools such as increased penalties and administrative and judicial enforcement mechanisms.” While the Action Plan acknowledges that a number of these mechanisms already exist, a number of key statutory authorities “do not have adequate penalties or administrative and judicial mechanisms,” according to the Plan. Increasing penalties and administrative and judicial enforcement mechanisms under the new Action Plan worries some in the fishing industry.
“It’s high profile,” says Becerra. “It’s a Presidential Task Force, and their going to put a lot of money and a lot of effort into it, and the government in my experience doesn’t put a lot of effort and money into things and then not bring cases at all against people—they just don’t do that. It’s the nature of the beast so to speak.”
Becerra points to the Lacey Act as an example. Becerra believes many of the cases resulting from the government plan will be prosecuted under the Lacey Act, and he believes that is serious business as is. “The Lacey Act is going to be one of the things they’re going to use to go after people,” Becerra said at SENA15. “It’s a criminal statute—it’s very easy to violate it if you don’t have your ducks in order.”
“Under the Lacey Act,” Becerra continued, “it basically makes it a crime to import fish or traffic in fish that’s been caught illegally under U.S. or foreign law…there going to have this requirement that you have to trace the fish and to show that it was legally caught in the waters from which it came from.” Becerra went on to say that the levels of traceability for fishes caught outside of U.S. waters would be, in his opinion, “pretty onerous and pretty difficult for companies to do correctly at least.”
Becerra and others disagree with the Plan, which suggests the Lacey Act has a very low civil penalty maximum. “Most people think of the Lacey Act as an absolutely nuclear approach to enforcement,” said NFI President John Connelly. “I don’t think you’d have many of the business people agreeing with the comment that the Lacey Act is somehow inadequate because it has low civil enforcement. People go to jail—huge criminal enforcement in that area.”
The Government argues in the Action Plan that enhanced enforcement authority is necessary because existing enforcement authority doesn’t go far enough. “Tools such as increased civil monetary penalties, clear forfeiture authority, and increased authority to impose criminal fines and penalties, including through the application of laws related to money laundering and the Racketeer Influenced and Corrupt Organizations Act (RICO),” says the Task Force, “are needed to deter illegal activity motivated by the large profits that may be associated with IUU fishing and trade in the resulting product.”
Connelly made NFI’s position clear on this point during the panel discussion following the Government’s announcement at SENA15. He warned against “enforcement overreach” and expressed concern about how laws not intended to address IUU fishing and seafood fraud would be used. For example, he pointed to RICO and recalled a high profile story about seafood fraud that ran in the Boston Globe in 2011. “A famous chef [in Boston] mislabeled some sablefish and called it butterfish,” Connelly said. “He said ‘because it rolled off his tongue more easily’—that was his exact quote. That doesn’t make him Don Corleone. That doesn’t make him John Gotti. So we’re concerned about the concept of overreach in enforcement in using these laws that were unintended for these kinds of things.”
While there are many contentious issues for the fishing industry in the Government’s new action plan, overall most in the industry agree addressing the problem of IUU fishing and seafood fraud is important. Many are supportive of a risk-based traceability program to track seafood from harvest to entry into U.S. commerce, so long as that program would not ultimately cost those in the seafood industry who are operating legally. The fishing industry would like to see the program remain targeted on those species and fisheries that pose the greatest risk, and they worry about the Government’s stated plans to expand the program to all seafood entering U.S. commerce by December 2016.
“Why are we talking about expanding to all fish when a risk-based system clearly makes the most sense?” says Gibbons. “If tilapia is not being mislabeled and is not even a wild caught species, then why are we working to expand the effort to tilapia? This would ultimately cost and negatively impact species that are not suspected of fraud or IUU.”
As the Action Plan moves forward toward implementation, the Government will be soliciting additional input from all stakeholders prior to final rulemaking on various aspects. For more information, or to learn how and when to submit comment, stay tuned to the National Marine Fisheries Service International Affairs webpage.