Saving Seafood

Rafael, potential buyer of fleet enter into Memorandum of Agreement

September 22, 2017 — NEW BEDFORD, Mass. — Carlos Rafael and a potential purchaser have entered into a Memorandum of Agreement regarding a sale of his vessels and accompanying permits that would remove the fishing mogul from the industry, according to court documents filed Wednesday.

Rafael’s sentencing memorandum reiterated the potential deal that was first publicly revealed in July. It also stated that NOAA and the U.S. Attorney’s Office haven’t taken a final position on the proposed sale and didn’t identify the buyer.

The Government’s Sentencing Memorandum, also filed on Wednesday, stated that the sale of Rafael’s entire fleet could be worth $70 million to $80 million to a local buyer.

On Monday, Rafael’s attorney’s filed an Opposition of Forfeiture, which stated a deal for 13 groundfish permits would be valued at $16.3 million. It made no reference, though, to the value of the entire fleet, but still suggested a deal would remove Rafael from the industry.

There are two prominent business in New Bedford that possess the means to inherit the permits: Whaling City Seafood Display Auction and Eastern Fisheries. Neither returned requests for comment.

It all stems from Rafael pleading guilty to falsifying fishing quota and smuggling cash in March. As part of the agreement, 13 vessels and the permits associated are subject of forfeiture.

Read the full story at the New Bedford Standard-Times

Fishing industry awaits Rafael outcome

Stakeholders weigh in on fate of Codfather’s permits, penalties

September 22, 2017 — The specter of Carlos Rafael, along with his legal baggage and trove of groundfish permits, continues to hang over the New England commercial fishing industry like a shroud that most stakeholders wish would just go away.

The sentencing of Rafael, the New Bedford fishing magnate known as “The Codfather” for his expansive vessel and groundfish permit holdings, is set to begin Monday in U.S. District Court in Boston on charges of conspiracy, lying to federal fishing regulators about the nature and size of his groundfish landings and bulk smuggling.

“We can’t wait for this to be resolved,” said Maggie Raymond of the Associated Fisheries of Maine.

The sentencing of the 65-year-old Rafael, who pleaded guilty in March as part of a plea deal with federal prosecutors, won’t end the contretemps. Not by a long shot.

While everyone seems to agree that Rafael should feel the full wrath of the law for his admitted misdeeds — he faces up to 76 months in prison, restitution of $109,000 to the IRS and the seizure of at least the 13 groundfishing vessels used in his scam — full resolution only will come when NOAA Fisheries decides the final fate of his 42 groundfishing permits.

There is no shortage of opinions of what NOAA should do.

Read the full story at the Gloucester Times

Local buyer for Carlos Rafael’s fishing permits, court documents say

September 21, 2017 — NEW BEDFORD, Mass. — Documents filed in federal court Monday reveal that a local buyer has been identified for Carlos Rafael’s fishing permits. The potential deal would remove Rafael from commercial fishing, according to a 14-page document filed by Rafael’s attorneys opposing federal forfeiture.

The single buyer is identified as having “a spotless compliance record” to purchase at least the 13 groundfish permits and vessels. The document is unclear if Rafael’s additional permits and vessels, estimated to be at least 35 in total, are included in negotiations. However, it states, “Rafael has taken substantial steps to voluntarily remove himself from the federal fishery entirely in a manner that does not jeopardize New Bedford’s economy.”

The document appraises the 13 groundfish permits, related to Rafael’s illegal reporting guilty plea in March, as worth more than $30 million. Rafael’s ownership, excluding other business partners’ shares, amounts to more than $19 million. The purchase price for the identified buyer is $16,333,558, according to the document.

In contacting a number of sources within the fishing industry Wednesday, The Standard-Times found no evidence that this deal had been completed. Rafael is scheduled to appear Monday and Tuesday for sentencing in U.S. District Court in Boston.

Two prominent businesses in New Bedford possess the means to acquire the permits based on financial means and ability to operate a fleet of that size: Whaling City Seafood Display Auction and Eastern Fisheries. Neither returned requests for comment.

Read the full story at the New Bedford Standard-Times

Professor: Carlos Rafael’s actions did little to affect the ‘big picture’

September 20, 2017 — NEW BEDFORD, Mass. — A study by an SMAST professor shows that claims alleging Carlos Rafael’s actions created hysteria in the New England Fishery are exaggerated. The study by Dr. Brian Rothschild was filed in federal court on Monday, a week before Rafael is scheduled to be sentenced for falsifying fish quotas.

Rothschild said he doesn’t condone anything Rafael did, but in his study argues the data associated with the fishing tycoon’s criminal actions reveal a minimal effect on stock assessments.

In 54 pages entitled “The effect of under-reported catch (URC) on the New England Fishery and stock dynamics,” Rothschild used data agreed upon by the Department of Justice and Rafael’s attorneys, who funded the study.

“The thing that stood out the most was in terms of the big picture the amount of fish that both parties agreed to was relatively small,” Rothschild told the Standard-Times. “I put no value judgement on that. That’s for others to do.”

In the study, Rothschild stated, “The URCs were so small relative to common-sense benchmarks, that they could hardly be noticed in either the abundance of fish in the ocean or in stock assessments.”

Among the dozens who’ve spoken out since Rafael pleaded guilty in March, including Gov. Charlie Baker, Mayor Jon Mitchell, the Maine Congressional delegation and other organizations, Rothschild is the first to present data minimizing the effects of Rafael.

“I think that it’s a very contentious issue. When you look at the data, it comes out different than what most people perceive,” Rothschild said. “At the end of the day, it’s the science that really counts.”

Read the full story at the New Bedford Standard-Times

MASSACHUSETTS: Gov. Baker: Carlos Rafael windfall should fund electronic monitoring

September 20, 2017 — BOSTON — The conviction of New Bedford fishing mogul Carlos “The Codfather” Rafael was a black stain on the iconic Massachusetts seafaring industry.

But Gov. Charlie Baker is urging restitution that some believe could help turn rotten fish into sushi.

Baker, in a letter to federal fishing regulators late last month, sided with a dozen state lawmakers and local officials who are urging the proceeds from the forfeiture of Rafael’s fishing fleet and any financial penalties tied to his case to be used to pay for electronic catch monitoring.

The money to pay for monitoring would relieve a major financial pressure on the state’s fishermen who have to pay for at-sea monitors who ensure compliance with catch-quotas designed to protect the health of groundfish stock.

“This is the best way to provide some level of restitution to the industry that Mr. Rafael harmed through his crimes. While I recognize that these funds would not cover the entire cost of monitoring, it is our hope that a fully funded program could be developed in the near future,” Baker wrote.

The governor also requested that the groundfish permits associated with the 13 boats Rafael will forfeit as a result of his guilty plea in March be redistributed to eligible permit holders in the Massachusetts fleet. Some from neighboring coastal states have advocated for the permits to be more widely disseminated.

Read the full story from State House News Service at the Gloucester Times

Carlos Rafael argues against vessel forfeiture, poses new buyer for fleet

September 20, 2017 — New Bedford, Massachusetts-based fishing magnate Carlos “Codfather” Rafael has challenged the government’s proposal to seize his fleet of 13 groundfish vessels, arguing that the act is unconstitutional, according to court documents filed by his legal team.

Forfeiting the vessels and their corresponding permits, which are allegedly worth more than USD 30 million (EUR 25 million), would be a violation of the excessive fines clause of the Eighth Amendment of the U.S. Constitution, Rafael’s lawyers said in court documents submitted for review to U.S. District Court judge William Young in Boston.

While U.S. sentencing guidelines place the legal maximum fine at no more than USD 250,000 (EUR 208,460) in cases such as this, Rafael’s legal team has suggested the Codfather forfeit USD 2.8 million (EUR 2.3 million), or double the value of the 782,812 pounds of groundfish Rafael admitted to misreporting.

“Such an order will serve the purposes of punishment (including severely punishing Mr. Rafael and deterring others) within constitutional bounds without incurring the devastating effects on his own business and innocent third parties that are threatened by the government’s motion,” Rafael’s lawyers wrote.

Issues of ownership regarding the seized groundfish fleet have cropped up over the course of Rafael’s trial. Rafael’s personal share of the vessel fleet up for grabs is valued at nearly USD 19 million (EUR 15.8 million), the balance of which belongs to his wife, Conceicao, according to the Codfather’s legal team. In a petition filed in Massachusetts on 28 August, Conceicao Rafael claimed ownership of 50 percent of eight fishing vessels and three fishing companies – My Way Fishing, Corvo, and S & S Fishing – that are tentatively subject to forfeiture by the United States government in relation to her husband’s criminal case.

Read the full story at Seafood Source

Rafael Attorneys File Report By Dr. Brian Rothschild Concluding Misreporting Did “De Minimus” Harm to Science and Assessments

WASHINGTON (Saving Seafood) — September 18, 2017 — Attorneys for Carlos Rafael filed a report in the U.S. District Court for Massachusetts this evening that concludes that the fish mislabeling and record falsification to which Mr. Rafael entered a guilty plea had a limited impact on the amount of under-reported catch and the quality of stock assessments in the Northeast.

The report was authored by Dr. Brian Rothschild, Dean Emeritus of the University of Massachusetts, Dartmouth School for Marine Science and Technology.

According to the report, “the under-reported catch effects on fishermen or stock-assessment quality are de minimus.”

It also concluded that “the Sector IX [under-reported catch] relative to the Sector Fleet catch and allocation was less than 1%” and that “the percent of [under-reported catch] of the Sector Fleet catch and allocation was less than 1%.”

Mr. Rafael pleaded guilty in March to several counts, including fish mislabeling, falsifying federal records, tax evasion, and conspiracy. He is scheduled to be sentenced next week.

Read the full report here

The executive summary of the report is included below:

THE EFFECT OF UNDER-REPORTED CATCH (URC) ON THE NEW ENGLAND FISHERY AND STOCK DYNAMICS

B.J. Rothschild

September 18, 2017

EXECUTIVE SUMMARY

Various sources have asserted that the alleged mislabeling of fish by Carlos Rafael, Sector IX, has created harm by 1) reducing the quantity of fish that non-Sector IX fishermen could catch and 2) diminishing the quality of stock assessments used to “optimally manage the fish stocks. The mislabeled fish have been characterized as under-reported catch (URC).  The URC consists of four species of groundfish: yellowtail flounder, cod, sea dabs/American plaice, and witch flounder.  The magnitude and year of occurrence of the URC of each species has been determined by the Department of Justice and stipulated by parties. The years concerned are 2012,  2013,  2014 and 2015.

Our report refutes the assertions of harm.  We show that the URC effects on fishermen or stock-assessment quality are de minimus.

We analyzed the magnitude of the URC in relation to published fisheries statistics and stock assessments conducted by NOAA Fisheries (both GARFO and the Northeast Fisheries Science Center, NEFSC) available to the public from the official website and library resources.

We organized our analysis into three approaches:  1) technical issues, 2) data issues, and 3) five perspectives that analyze the URC in relation to the catches and allocations of the Northeast Multispecies Sector Fishery, to the effort of the Northeast Multispecies Sector Fishery, to the catches and allocations of the entire Northeast Multispecies Fishery, to resource wastage through under-fishing and discarding, and to effects on stock assessments.

The first technical issue explores the URC in the context of overfishing/under-fishing in a simplified setting of a multispecies groundfish fishery.

The second technical issue involves a brief discussion on the effects of fishing and how these effects might relate to URC in terms of immediate effects and consequent effects.  For example, if 20% of the stock was removed as URC, then the catch per unit of effort (CPUE) would decline immediately by 20%.  However, given the complexity of the fishing process it is doubtful whether a change of this magnitude would be observed.  This is especially true for stocks out of equilibrium because a return to equilibrium may cause the stock to either increase or decrease.

The first data issue concerns the assembly of fishery statistics by species and year.  To evaluate the effect of the yellowtail flounder URC or cod URC we combined catch and assessment statistics from the geographically separate areas used by NOAA Fisheries to manage these species.  This was not the case with American plaice URC or witch flounder URC as the management of these species is not split geographically.  With respect to annual fishery statistics,  NOAA utilizes calendar year in stock assessments and fishing year (May 1 to April 30) in the actual management of the Northeast Multispecies Fishery and its component the Northeast Multispecies Sector Fishery in setting Annual Catch Entitlements (ACEs) or Annual Catch Limits (ACLs) and reporting catch statistics.

The second data issue relates to the quality of NOAA stock assessments.  We show that NOAA stock assessments are associated with considerable statistical variability, a conclusion shared by external observers and NOAA expert panels.

The first perspective shows that the Sector IX URC relative to the Sector Fleet catch and allocation was less than 1%.

The second perspective shows that the percent of URC of the Sector Fleet catch on a per species basis is only a few percent.

The third perspective explores how in understanding the harm done by generating URC, it is necessary to go beyond just the magnitude of the URC.  For example, if we examine all 16 stock-year categories we find that the Sector IX URC is zero for some years and species; doesn’t cause the Sector IX ACE to be exceeded when added to the Sector IX catch (all yellowtail flounder URC);  or does cause the Sector IX ACE to be exceeded when added to the catch. The latter case is the harm generated by Sector IX and it occurred in 2015 for cod, American plaice and witch flounder, and in 2013 and 2014 only for witch flounder. These overages, however, put in context of the total ACE of entire Northeast Groundfish Fishery show that the overages amounted to 1%  to 2% and that the actual amounts of ACE overage were several time less than the amount of fish discarded.

The fourth perspective shows that 30-40% of the total Northeast Multispecies Fishery ACE  for the URC species is wasted by under-fishing and discarding and puts into perspective the small magnitudes of the URCs.

The fifth perspective examines the effect of the URC on stock assessments by providing a heuristic example.  While we could not repeat the NOAA stock assessments per se by adding URC to them, we show that the quantities of URC are so small that it is unlikely that they would have had a significant effect.  Our heuristic example utilizes a standard stock assessment technique (virtual population analysis) to evaluate the effect of the URC of witch flounder on estimates of the abundance of the year class of this species most affected by the URC.  It shows that adding the URC to NOAA catch-at-age estimates result in a small increase in estimated year class numbers (2%) or biomass (3%).  This difference is dwarfed by NOAA stock assessments of the same age group of witch flounder that varied by 27% between the two different assessment models it used in its 2015 stock assessment report.

Lastly, with respect to NOAA stock assessments of the URC species, we point out that the stock assessments of all 20 stocks in the Northeast Multispecies Fishery were under review the week of September 11, 2017.  With respect to the URC species, based on deliberations of a NOAA expert panel, all most recent stock assessments have significant flaws affecting the estimation of population sizes and therefore management advice.

 

Jim Kendall: Plenty of guilt to go around on Carlos Rafael

September 18, 2017 — OK, OK, I get it! Carlos Rafael, aka, “The Codfather,” has done some pretty reprehensible things while amassing what seemingly is the largest percentage of ownership of the US multispecies groundfish fleet.

I am not going to try to defend his actions, or his reasoning, but I would like to point out that there is plenty of guilt to go around and some people should not be so quick to point their finger at him alone. What is it that they say about casting the first stone?

Apparently, among his sins is his aforementioned ownership of the largest fleet of multi-species groundfish vessels, as well as some scallop vessels. While this may be true, let us ponder what enabled, abetted, and allowed him to gain such an advantage over everyone else. At this point, he wasn’t breaking the law, he was only taking advantage of it, and of those who most fervently wanted it!

It should be remembered, that the Environmental Defense Fund (EDF), as well as the Conservation Law Foundation (CLF), were several of the earliest, most emphatic, and dedicated supporters for the development, adoption, and implementation of the “Catch Share” program.

Read the full opinion piece at the New Bedford Standard-Times

MASSACHUSETTS: CLF teleconference on Rafael agrees on one thing: More monitoring

September 14, 2017 — NEW BEDFORD, Mass. — Less than two weeks remain until the Carlos Rafael trial is scheduled to wrap up with sentencing set for Sept. 25 and 26.

The Conservation Law Foundation held a teleconference Wednesday to discuss the evolution of Rafael’s actions to his guilty plea and potential fallout from sentencing.

CLF attorney Peter Shelley discussed the topic with Togue Brawn of Downeast Dayboat, a commercial scallop company, and Patrick Shepard of the Maine Center for Coastal Fisheries.

“I think it’s fair to say all eyes on are NOAA fisheries and what’s it going to do,” Shelley said.

The answer at this point is no one really knows — at least until sentencing. NOAA has consistently told The Standard-Times it doesn’t comment on ongoing litigation.

However, the CLF teleconference provided recommendations on what can be done in the aftermath of Rafael’s sentencing.

Read the full story at the New Bedford Standard-Times

Conservation Law Foundation submits victim impact statement in Carlos Rafael case

September 7, 2017 — NEW BEDFORD — Within the past 10 days, the Conservation Law Foundation sent three letters to various individuals involved — either directly or indirectly — with the Carlos Rafael case.

The foundation doesn’t represent any party directly, but its goal is to “use the law, science and the market to create solutions that preserve our natural resources, build healthy communities, and sustain a vibrant economy,” according to its website.

CLF sees Rafael’s guilty plea in March to illegal fishing as infringing on its principles.

“Discovering there’s been someone who has been systematically trying to undercut management, from our perspective not only harms the fisheries but also the work we’ve done,” senior counsel for CLF Peter Shelley said.

Shelley drafted all three letters. The first, he sent Aug. 29 to the New England Fishery Management Council’s Chair John Quinn and Executive Director Thomas Nies.

The second was addressed to NOAA’s John Bullard, the regional administrator, and Joe Heckwolf, an enforcement attorney, was sent Sept. 1.

The final letter, dated Sept. 6, was addressed to Judge William Young, who presided over Rafael’s plea agreement and will sentence the New Bedford fishing giant on Sept. 25 and 26.

Read the full story at the New Bedford Standard-Times