Southern Shrimp Alliance

Federal Court Rejects National Fisheries Institute’s Challenge to Seafood Import Monitoring Program

August 30th, 2017

“In the end, the Rule weathers the storm of Plaintiffs’ various challenges.” 

 

This (ill-timed) metaphor concludes the decision issued on Monday by the U.S. District Court of the District of Columbia rejecting the National Fisheries Institute’s (NFI) efforts to invalidate the Seafood Import Monitoring Program (SIMP).

 

In reality, as discussed extensively in the Court’s 67-page opinion, there wasn’t much to weather.

 

NFI’s suit asserted that the National Marine Fisheries Service (NMFS) was without authority to regulate seafood fraud, had failed to demonstrate the basis for its determination that certain species were at-risk, had inappropriately extended SIMP to encompass seafood imports produced through aquaculture, had provided insufficient time for importers to comply, and had made a series of technical errors in promulgating the program.  But the federal court found little merit in any of these arguments. The Court affirmed that the regulation of seafood fraud was well within the scope of NMFS’s authority as provided by Congress through the Magnuson-Stevens Fishery Conservation and Management Act and other authority.  The Court additionally found that the agency reasonably identified “priority” species to which the SIMP would be applied.  Moreover, the Court held that NMFS had “provided a reasoned explanation for why regulating farm-raised seafood promotes the Rule’s overarching regulatory goal of preventing IUU-caught and/or mislabeled seafood from entering the United States” and that the agency had already addressed NFI’s complaints regarding the compliance date of January 1, 2018, giving “a rational explanation for why that concern did not necessitate a different compliance date.”

 

Although the Court rejected most of NFI’s arguments out of hand, it agreed with the importers’ group and faulted NMFS for failing to release to the public the data utilized by the agency in identifying “at-risk” species.  However, the Court explained that merely observing that data should have been released was insufficient to warrant a reversal of the program.  Instead, parties challenging the rule are required to demonstrate that they “had something useful to say” about the undisclosed data that might have had some impact on the agency’s decision-making.  Rather than identify what NFI might have been able to contribute should data have been made available, the organization made only “vague claims” that were insufficient to show prejudice.

 

On the whole, the court’s decision represents a comprehensive affirmation of NMFS’s exhaustive work in designing and implementing the SIMP.  The Court recognized that the agency’s efforts to address comments from parties led NMFS to acknowledge that its early estimation of the compliance costs for the seafood importing industry was too low.  At the same time, the Court also recognized that the intent of the “increased scrutiny” of imported seafood was to “reduce the incentives to engage in IUU fishing over time” and that “by reducing the amount of illegally caught seafood in the U.S. market, domestic fishermen would be able to compete on a level playing field and reap the attendant financial benefits.”

 

“The court’s decision shows that knee-jerk opposition to any regulation of seafood imports is no longer tenable,” said John Williams, executive director of the Southern Shrimp Alliance.  “Everyone in this industry is aware of the regulatory gaps that have been unapologetically exploited by seafood importers for years to the detriment of U.S. consumers and U.S. seafood producers.  Our industry operates under intense regulatory burdens that, among other things, require us to be accountable and provide traceability for the shrimp we land.  It’s well past time that we expect the same from imports.”

 

Mr. Williams added, ”Having successfully defended the program in federal court, NMFS should now lift the administrative stay and make the monitoring program applicable to shrimp imports.  To that point, SSA reiterates its appreciation for the consistent efforts of many Gulf and South Atlantic Senators led by Senator Bill Cassidy (R-LA) to communicate to the Administration their full support for the SIMP program overall and for the lifting of the administrative stay on shrimp as reported in previous New Alerts.”

 

Read the full memorandum opinion issued in Alfa International Seafood v. United States, Case No. 1:17-cv-00031 (D.D.C. Aug. 28, 2017) here: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2017cv0031-87

 

Review the Southern Shrimp Alliance prior News Alert, Solid Senate Support for Combatting Illegal Shrimp Imports (May 11, 2017): http://www.shrimpalliance.com/solid-senate-support-for-combatting-illegal-shrimp-imports/