U.S. Customs and Border Protection Issues Withhold Release Order Barring Imports from Fishing Vessel

In the context of the $6.5 billion worth of shrimp imported into the United States from all over the world in 2017, the $4.6 million in shrimp we imported from Myanmar (Burma) that year was just a small drop in a huge ocean. But $4.6 million worth of shrimp is still a lot of shrimp. And it was a substantial jump up from the $2.7 million in shrimp that the United States imported from Burma the year before (2016). The federal government indicates that the U.S. was on track to import roughly the same amount of Burmese shrimp in 2018 as it did in 2017.

But why are we importing any shrimp from Burma at all? The U.S. Department of Labor’s 2018 List of Goods Produced by Child Labor or Forced Labor reports that shrimp in Burma is a product known to be produced through forced labor. The U.S. Department of State’s June 2018 Trafficking in Persons Report downgraded Myanmar to a Tier 3 country – meaning that the United States believes that Burma fails to meet minimum standards in eliminating human trafficking and that the Burmese government is not making significant efforts to try and meet those minimum standards. It’s one of only twenty-two (22) countries in the world to currently carry a Tier 3 designation.

In these circumstances, anyone purchasing Burmese-origin shrimp might be expected to demand a demonstration from their supplier that their shrimp is not tainted by the country’s notorious reputation for human rights abuse. But that’s unlikely to be the case because there has been nothing in the history of enforcement of U.S. law that would require, or even otherwise incentivize, importers or purchasers to ask hard questions about how their shrimp is produced.

Problems with labor abuse in shrimp supply chains are, of course, not limited to shrimp sourced from Myanmar. The 2018 List of Goods Produced by Child Labor or Forced Labor continues to report that shrimp from Thailand (U.S. imports worth $811 million in 2017) is produced through child and forced labor and that shrimp from Bangladesh (U.S. imports worth $19.5 million in 2017) is produced through child labor. For consumers, it may be inappropriate to assume that the supplier has taken steps to guarantee that any Thai or Bangladeshi shrimp they purchase is not tainted by labor abuse.

Change may be coming.

On Monday, U.S. Customs and Border Protection (CBP) announced that the agency had imposed a Withhold Release Order (WRO) on any seafood imported that had been landed by the fishing vessel Tunago No. 61, a tuna longline vessel flagged in Vanuatu. The WRO was issued pursuant to CBP’s authority under 19 U.S.C. 1307, banning the importation of goods produced through forced or child labor. It was the first WRO issued this year and the first ever issued regarding a fishing vessel.

A 2006 report issued by the International Transport Workers’ Federation (“Out of Sight, Out of Mind: Seafarers, Fishers, and Human Rights”) highlighted stories regarding severe abuse of crewmembers onboard Tunago #61:

“Tunago #61: Chinese Fishers Brutalised in American Samoa

On 26 September 2005 six Chinese fishers jumped ship in American Samoa. For a few days they hid in the mountains, fearing capture by their captain. They sought assistance from their company’s agent but no advice was forthcoming. They were turned away from the police station and eventually took refuge in Pago Pago Seafarers’ Centre, which alerted the ITF to their plight.

The men gave eye witness accounts of the extreme physical abuses suffered by crew members on board the Tunago #61, on which they ‘received beatings sporadically and systematically every day’ at the whim of the skipper and his brother, the chief engineer. The men were also subject to death threats by the skipper, who told them he carried a gun and that they could easily be ‘written off’ as having been swept overboard.

One worker, beaten with an iron rod, sustained serious head injuries and, bleeding profusely, was locked up in the bow for three days without food or water. His offence was to ask for leave from the boat.

Another fisher, thought to have been chatting with a colleague, was grabbed by the hair and repeatedly punched in the face. After the assault by the chief engineer, the man was beaten with a thick wooden rod 3ft long on his thigh, stomach and back.

For failing to secure bait firmly on all hooks before they were flung in the sea, a young fisher was attacked by the skipper who, reportedly, punched him in the face again and again then kicked him in the head when he fell to the deck. The fisher’s punishment continued with another round of baiting, making him work continuously for almost 48 hours.

These are a few examples of the sustained physical abuse to which the young Chinese workers were subjected.”

Last year, in a report issued by Greenpeace (“Misery At Sea”), the vessel Tunago No. 61 was again singled out. In its report, Greenpeace focused on the murder of the boat’s captain on September 7, 2016 and the subsequent incarceration of six Indonesian crewmembers for the crime in Vanuatu. Greenpeace reported that it had sent investigators to Vanuatu to interview the crewmen and “[t]he interviews paint a picture of inhumane working and living conditions on board Tunago No. 61, and the abusive treatment of the crew in the months leading up to the captain’s death.”

In making public that a WRO had been issued regarding seafood imports associated with Tunago No. 61, CBP provided no explanation for why the agency decided to take action. In fact, there appears to have been no public discussion from anyone regarding CBP’s unprecedented prohibition on the import of seafood products landed by a single vessel.

At first glance, there are significant questions as to whether the WRO is, as a practical matter, enforceable. But CBP has issued the WRO at a time when NOAA’s Seafood Import Monitoring Program (SIMP) is now effective on imports of tuna into the United States. Under SIMP, an importer of tuna must provide and report key data – including information regarding the name and flag state of the harvesting vessel – regarding the fish at importation.

Moreover, the manner in which tuna are consolidated and sold means that the impact of the WRO may be broader than just the one vessel. A subsequent story on Greenpeace report by Tom Seaman for Undercurrent News, “Did Greenpeace Give Free Pass to Thai Union to Focus on Taiwan’s ‘Biggest Fish’ FCF?” included commercial documents regarding frozen albacore tuna loaded on to the vessel M.V. Shin Ho Chun No. 102 around the same time that the Tunago No. 61’s captain was killed. These documents indicated that the M.V. Shin Ho Chun No. 102 was carrying frozen albacore tuna landed by Tunago No. 61, as well as the fishing vessels Tunago No. 31, Tunago No. 32, Tunago No. 51, Tunago No. 52, Tunago No. 62, Fortuna No. 1, Fortuna No. 11, Fortuna No. 12, Hong Yang No. 8, Hong Yang No. 88, and Hui Shun. The frozen albacore tuna consolidated onboard the vessel was then discharged in Thailand to three different consignees.

If the WRO had been in effect at that time, an importer would likely have to demonstrate that any albacore tuna associated with the lot unloaded from the M.V. Shin Ho Chun No. 102 could not have been landed by the fishing vessel Tunago No. 61 in order to bring that merchandise into the United States. If such distinctions could not be made, then presumably all of the consolidated seafood involved would be barred from entry into the United States.

With the implementation of SIMP and the amendment of the law to eliminate a loophole that prevented enforcement of the ban on importation of goods produced through forced or child labor on seafood, tools are in place to address slavery in the seafood supply chain. Preventing goods produced from slave and child labor from entering the U.S. market has become an increased priority for the U.S. Congress. In response, CBP has now established a formal Forced Labor Division within the Trade Remedy Law Enforcement Directorate (TRLED) of its Office of International Trade. This division will be responsible for demonstrating the agency’s commitment to significant enforcement of our laws. Although it is unclear whether this is the first step in meaningful enforcement of laws banning the importation of goods produced through forced or child labor with regard to the seafood industry, CBP’s issuance of a WRO on seafood associated with Tunago No. 61 is a welcome development.

Review the U.S. Department of Labor’s “2018 List of Goods Produced by Child Labor or Forced Labor” here:  https://www.dol.gov/sites/default/files/documents/ilab/ListofGoods.pdf

Review the U.S. Department of State’s “June 2018 Trafficking in Persons Report” here: https://www.state.gov/j/tip/rls/tiprpt/2018/

Read U.S. Customs and Border Protection’s list of Withhold Release Orders under 19 U.S.C. 1307 here (the WRO on Tunago No. 61 is listed under “Other”): https://www.cbp.gov/trade/trade-community/programs-outreach/convict-importations/detention-orders

Read the International Transport Workers’ Federation 2006 report “Out of Sight, Out of Mind: Seafarers, Fishers, and Human Rights” here: https://www.itfseafarers.org/files/extranet/-1/2259/humanrights.pdf

Read Greenpeace’s May 2018 report “Misery at Sea” here: https://www.greenpeace.org/new-zealand/publication/misery-at-sea/

Read Undercurrent News’ June 11, 2018 story (by Tom Seaman) “Did Greenpeace Give Free Pass to Thai Union to Focus on Taiwan’s ‘Biggest Fish’ FCF?” here: https://www.undercurrentnews.com/2018/06/11/did-greenpeace-give-free-pass-to-thai-union-to-focus-on-taiwans-biggest-fish-fcf/

Review the commercial documents related to M.V. Shin Ho Chun No. 102’s cargo as posted by Undercurrent News here: https://www.shrimpalliance.com/wp-content/uploads/2019/02/Tunago-2-1.pdf

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