Industry’s challenge to seafood import monitoring program rejected

A legal challenge to the Seafood Import Monitoring Program (SIMP) – a set of regulations requiring increased traceability for seafood imports – was rejected on Monday, 28 August.

The lawsuit was filed earlier this year by the National Fisheries Institute (NFI) and a large group of U.S. seafood companies, including Trident Seafoods, Fortune Fish and Gourmet, Handy Seafood, and Alfa International Seafood. The industry representatives argued that the program violated federal law and that their businesses would be harmed as a result of its implementation.

U.S. District Judge Amit Mehta ruled against the plaintiffs, finding that the Commerce Department’s implementation of the program was not done inappropriately. Specifically, Mehta found that SIMP was issued under rules allowed under the Magnuson-Stevens Act and Administrative Procedure Act, and that the department properly completed a regulatory flexibility analysis to determine SIMP’s impact on small businesses.

“The court finds that the rule’s issuance did not run afoul of the MSA, and the current Secretary of Commerce validly ratified the rule, thereby curing any alleged constitutional defect in the rule’s promulgation,” Mehta wrote.

Moreover, “Congress granted the department authority to issue regulations to combat seafood fraud, and the department did not encroach upon another agency’s exclusive jurisdiction by so doing,” Mehta wrote. “The rule does not violate either the procedural or substantive requirements of the APA; and the department did not transgress the requirements of the Regulatory Flexibility Act.”

Barring an appeal, Mehta’s ruling will allow the so-called Seafood Traceability Rule to take effect in January 2018, requiring importers to provide more specific information on several species of seafood - namely tuna, king crab, blue crab, red snapper, Pacific and Atlantic cod, dolphinfish, grouper, sea cucumber, swordfish, and sharks. Under the new rules, importers will have to accurately report the type of fish being shipped and how and where it was caught or farmed.

The idea for the rule was created by former U.S. President Barack Obama’s Task Force on Combating Illegal, Unreported and Unregulated (IUU) Fishing and Seafood Fraud. It was enacted in December 2016 under Obama’s directive.

The NFI and several other industry groups and seafood companies sued in January 2017 to block implementation of the rule. In a statement issued Friday, 29 August, NFI President John Connelly said his organization was “disappointed with the court’s decision.”

“The Seafood Import Monitoring Program (SIMP) remains an expensive burden for the American companies that will bear the costs, for instance USD 53 million [EUR 44.1 million] in recordkeeping expenses alone,” NFI President John Connelly said in a press release. “NFI has a long history of supporting the reasonable authorities Congress provided to administrations to combat illegal fishing. These additional regulations will not decrease pirate fishing. The SIMP will though, increase food prices and reduce seafood choices for the average American family. NFI will thoroughly review the court’s decision and as always our members will comply with the law.”

But environmental groups including Oceana, the Monterey Bay Aquarium, and the National Resources Defense Council – citing a study that found between 20 and 32 percent of wild-caught seafood imported into the U.S. borders comes from IUU fishing – cheered Mehta’s decision. 

“This ruling is a huge win for U.S. fishermen and consumers who are cheated when illegally caught or mislabeled seafood products make their way into our markets,” Oceana Senior Director for Illegal Fishing and Seafood Fraud Beth Lowell said. “It’s time for imported seafood to be held to the same standards as domestically caught fish. It’s time to level the playing field for U.S. fishers and reduce the risks facing U.S. consumers. All seafood sold in the U.S. should be safe, legally caught and honestly labeled.” 

In his ruling, Mehta estimated that the U.S. annually imports around 90 percent of its seafood – valued around USD 10 billion (EUR 8.3 billion), and that  “the vast majority of seafood consumed each year in the United States either originates from waters far from home or is caught locally but passes through a foreign processing and distribution chain.”

“The complexity of this catch-to-table distribution chain … is rife with vulnerabilities. It is well documented that, at each stage, opportunists seek to game the system, largely by circumventing laws or norms that regulate the manner in which the world seafood market operates. Such activities,” Mehta wrote, “have had profound global and domestic economic and noneconomic consequences.”