NRDC Defends Seafood Traceability in Court

NRDC and partners are going to court to ensure the federal government can keep working to end illegal fishing and seafood fraud, both of which are serious threats to ocean ecosystems. Specifically, we seek to intervene in a lawsuit that the commercial seafood industry brought to block a rule that will make the seafood supply chain more traceable. (See our intervention motion here.) The challenged traceability rule, which the National Marine Fisheries Service (NMFS) published last December, is a centerpiece of the U.S. government’s efforts to combat the influx of illegal seafood coming into our borders.

If the United States is to continue to play a leadership role in this fight, which NRDC believes it must, the traceability rule must be successfully implemented, and ultimately, expanded. That’s why we, along with our partners at Oceana and the Center for Biological Diversity and co-counsel from Earthjustice, are asking to defend it as parties to the litigation.

At the heart of the traceability rule is a goal of thwarting illegal, unreported, and unregulated (IUU) fishing. IUU fishing, along with its sister set of illegal practices, seafood fraud—which is often used to conceal IUU product by mislabeling species origin or produce quantity—have spurred a global crisis that is pushing our oceans and fishing communities to the brink.

Illegal, unreported, and unregulated fishing is also closely linked to human trafficking and forced labor, referred to as “seafood slavery.” While this is undoubtedly a global challenge, the U.S. government has a unique incentive to tackle it head-on. We are the second-highest importer of foreign seafood, importing 90% of the seafood we consume. Of wild-caught seafood entering our borders, an estimated 20 to 32 percent is illegal or unreported. 

Simply put, seafood demand in America is driving the IUU problem.

So it is no surprise that a new report by the Joint Ocean Commission Initiative, a bipartisan group of ocean leaders, calls on the Trump Administration and Congress to prioritize combatting IUU and seafood fraud to ensure a healthy future for our oceans.

NRDC and our ocean conservation partners urged the Obama Administration to move forward with the first phase of a comprehensive traceability program last year.  NMFS answered the call in December 2016 with the final traceability rule, also known as the seafood import monitoring program. The final rule establishes a data reporting and collection procedure for the import of 13 species and species groups, tracing them from the point of harvest to the point of entry into U.S. commerce. NRDC maintains that the rule must go further—in particular, it will be critical to activate the requirements for shrimp, which alone account for 29% of U.S. seafood imports by value, and eventually cover all species. However, the rule is a strong first step. It sheds light on these elusive activities and empowers agencies to take enforcement action, all of which will help reduce IUU fishing and seafood fraud on the global stage. (See more of my thoughts on the final rule here.)

Members of the commercial seafood industry filed the lawsuit in January. Plaintiffs include the National Fisheries Institute (NFI), a commercial seafood trade association that represents some of the biggest U.S. seafood companies, and eight individual companies. In their complaint, they make a handful of procedural arguments, including that the economic analysis underlying the rule was insufficient. We disagree. NMFS engaged in three years of rigorous analysis and public process that began in 2014 with fifteen recommendations by the President’s Task Force on IUU fishing and seafood fraud. NMFS considered and responded to comments from the industry and other members of the public throughout the rulemaking, including comments on the list of “at-risk” species the rule will cover initially.

The industry plaintiffs also argue that NMFS lacks authority under our primary federal fisheries law, the Magnuson-Stevens Act, to regulate seafood fraud and seafood “labeling.” Yet the rule falls far short of imposing labeling requirements.

NFI was a vocal opponent of the rule, arguing that the reporting and recordkeeping requirements would be a costly burden on seafood companies through the supply chain. But those requirements apply only to the estimated 2,000 importers of record whose names appear on customs papers. As for costs, NMFS has estimated that the permitting and data requirements will cost a total of $7,875,000 in the first year (not for each company, but shared among all), and $6,075,000 annually in future years. Stamping out IUU fishing and seafood fraud will protect U.S. and international fishermen who fish fairly and will ultimately restore value to legal seafood.

Credit: NOAA

If the Court grants our motion to intervene as defendants, we will defend the traceability rule, including NMFS’s authority to issue it under the Magnuson-Stevens Act. We expect that NMFS will work hard to do the same, and we look forward to working with the agency to safeguard this cornerstone of its program to combat IUU and seafood fraud. 

But as recent weeks have shown, uncertainty is the only thing we can be certain of under the Trump Administration (even on issues with a strong history of bipartisan support, like this one).

Rest assured that NRDC will be there every step of the way to prevent any settlement that would undermine or delay the rule.

About the Authors

Molly Masterton

Project Attorney, Oceans Program

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