Tips for dealing with US CBP and FDA seafood law enforcement: IUU fishing

An illegal fishing operation busted in Thailand in 2013.

From shrimp etouffee to lobster thermidor and Thai fish cakes to Singapore chili crab and your everyday tuna, salmon, and squid, most of the seafood being eaten in the U.S. is imported.

Unfortunately, there is a health risk associated with imported seafood compared to other imported food products. Hence, seafood is much more highly regulated by the federal government, especially by U.S. Customs and Border Protection (CBP), the U.S. Food and Drug Administration (FDA), and NOAA Fisheries. Legally, all imported seafood is monitored under the Food Safety and Modernization Act (FSMA), the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (Bioterrorism Act), the Lacey Act, and the FDA’s Hazard Analysis and Critical Control Points (HACCP) requirements.

In recent years, there has been greater emphasis by CBP and FDA to ensure the seafood brought into the United States complies with all applicable U.S. laws. In 2022, there was a record amount of imported seafood inspected by the FDA, there were a record number of FDA Import Alerts on imported seafood, CBP issued the first-ever withhold-release orders on shipments of seafood that arrived in the United States, and we had a record number of investigations, monetary penalties, and seizures of seafood products related to illegal, unreported, and unregulated (IUU) fishing. And even more enforcement actions are expected in 2023.

Foreign seafood suppliers, international transportation companies, and U.S. importers of seafood can protect themselves by learning about how to prevent issues with federal law enforcement authorities, and how to respond to any detention of imported seafood, refusal from entry, or seizure, penalty, or investigation by those same federal law enforcement agencies.

All imported food must be declared to both CBP and FDA prior to arrival in the United States. The data in those required advanced declarations are screened electronically and then, depending upon such factors as description of product, country of origin, name of supplier, tariff classification number, etc. the shipment is selected for a physical examination. There are three primary reasons for CBP and FDA to select, detain, and refuse imported seafood. The first of this three-part series investigated what happens if a foreign supplier is listed on an FDA import alert. The second looked into what happens when federal law enforcement agencies target and detain imported seafood because it is suspected of being produced by forced labor.

The third most-common method by federal law enforcement to target and detain imported seafood is when it is suspected of being illegal, unreported, and unregulated (IUU) fishing. The National Oceanic and Atmospheric Administration (NOAA) has an office called NOAA Fisheries, also known as National Marine Fisheries Service. NOAA Fisheries, in cooperation with other federal agencies, enforces U.S. provisions against IUU fishing.

IUU fishing is often linked to forced labor and fishing practices that harm ocean ecosystems. IUU fishing threatens the stability of marine fisheries, decreases food security of coastal communities, and poses increased risk to endangered and protected species. Unfortunately, poaching and overfishing have increased because of the COVID-19 pandemic, which has pushed more local fisher and people living in poverty, to engage in IUU due to limited economic opportunity. Worldwide, IUU fishing accounts for around 20 percent of global catch.  In certain countries, NOAA Fisheries estimates that number is closer to 50 percent.

“Unfortunately, there is a significant overlap between IUU fishing practices and the use of forced labor,” CBP says on its website. “In many cases, crew members are recruited under false pretenses and trapped into debt bondage. For instance, recruitment agencies may charge exorbitant fees, which require crew members to take a loan from the recruitment agency. These recruitment agencies may hold workers’ land titles or families as collateral, compelling the fishers to stay and work on the fishing vessel, while getting paid almost nothing. Due to the isolation of deep-sea vessels, other serious mistreatment such as physical abuse, violence, and excessive overtime are common forms of forced labor that take place aboard IUU fishing vessels.”

In a precedent-setting situation, on 9 December, 2022, the U.S Department of the Treasury’s Office of Foreign Assets Control issued sanctions against individuals and two large companies, Dalian Ocean Fishing Co. and Pingtan Marine Enterprise, which together operate 157 distant-water fishing vessels. These actions targeted perpetrators of serious human rights abuses for vessels engaged in IUU. The allegations crew members were forced to work 18 hours or more a day, were fed expired food, and were forced to fish illegally for sharks. Horrifically, the bodies of crewmembers who died onboard were dumped into the ocean rather than repatriated home.  As a result of the U.S. sanctions, the companies are forbidden to do business in the country and seafood from these companies is not allowed to enter the U.S. market.

CBP is working with other federal agencies, including NOAA, U.S. Fish and Wildlife Services, U.S. Coast Guard, U.S. Department of Agriculture, the Food and Drug Administration, and partners in the seafood supply chain to up its measures safeguarding the sustainability and integrity of seafood in the U.S. marketplace. CBP is enhancing its targeting tools; increasing its targeting activities, audits, and enforcement operations; training its workforce; and working with the trade community to increase awareness about the urgent need to stop products from IUU fishing from entering the U.S.

The Maritime SAFE Act, which became effective 20 December, 2019, created a formal U.S. Interagency Working Group on Illegal, Unreported and Unregulated Fishing. A report to Congress in 2022 set forth a National Five-Year Strategy for Combating IUU.  Federal law enforcement agencies, in cooperation with foreign law enforcement agencies, have conducted numerous investigations and taken enforcement actions which include boarding of foreign vessels by the U.S. Coast Guard, seizure of IUU seafood, civil penalties, and criminal prosecutions.

In 2018, NOAA Fisheries established the Seafood Import Monitoring Program (SIMP), is a risk-based traceability program requiring importers to provide and report key data from the point of harvest to entry into U.S. commerce on 1,100 unique species which have been identified as particularly vulnerable to IUU fishing, seafood fraud, or both. Common ways that criminals attempt to hide the true country of origin of their catch typically include two methods: Transshipping, when seafood products are exported through different countries to avoid duties and tariffs, and at-sea transfers, in which illegal fishing vessels transfer their catch to cargo vessels carrying legitimately-caught seafood. SIMP covers nearly half of all U.S seafood imports. NOAA Fisheries cooperates closely with CBP to combat illegal fishing because of its direct connection serious crimes like forced labor, drug trafficking, money laundering, and wildlife trafficking.

NOAA Fisheries maintains a list of vessels that are connected with IUU fishing. Similarly, NOAA Fisheries maintains a SIMP-Compliant Importers List to encourage U.S. seafood importers to follow import requirements. The overall objective to prevent the introduction into the United States of seafood that was caught, transported, or processed in violation of U.S. laws.   Simply stated, because 80 percent of the fish eaten in the United States is imported, without effective traceability and monitoring, illegally caught fish around the world can enter the U.S. market.  Moreover, threatened fish stocks will be depleted as vessels have been repeatedly found illegally fishing in the exclusive economic zones of coastal states around the globe.  Fortunately, from The White House to the U.S. Congress, and the various federal law enforcement agencies are aggressively conducting surveillance, investigations, and criminal prosecutions on a scale never seen before.

Determining whether seafood is accurately labeled is difficult for consumers, but also for the experts. With a growing suite of tools from inspections and criminal investigations to traceability systems and genetic analysis, federal law enforcement agencies, in cooperation with seafood industry associations such as the National Fisheries Institute (NFI), are cracking down on seafood fraud. Species name and country of origin falsification are classic fraud schemes. Mislabeling seafood and concealing illegally caught fish evades inspection fees, permits, and other business costs that affect the price of responsibly caught seafood. 

The modern fisheries sector is globalized, industrialized, and integrated into the worldwide financial market. For this and many other reasons, IUU fishing threatens the livelihoods of law-abiding American seafood producers and it should be a priority of all seafood operators globally to work to eliminate IUU fishing throughout their supply chains. Here are five steps companies can take to ensure they're compliant with U.S. law:

  1. Check the NOAA Fisheries IUU Vessel List;
  2. Check the NOAA Fisheries SIMP Compliant Importers List;
  3. Check the CBP Withhold-Release Orders and Findings List;
  4. Check the OFAC website for sanctioned persons/companies;
  5. Check the FDA Import Alert List.

Peter Quinter is the head of the U.S. customs and international trade team at West Palm Beach, Florida, U.S.A.-based law firm Gunster.

Photo courtesy of nattapon supanawan/Shutterstock


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