Saving Seafood

Constitutionality of seizing Carlos Rafael’s permits in question

September 27, 2017 — BOSTON –Judge William Young decided half of Carlos Rafael’s fate on Monday: The New Bedford fishing mogul was sentenced to 46-months in prison with three years supervised release and a $200,000 fine.

The other half, which Young continues to take under advisement, involves the 65-year-old’s 13 groundfish vessels and permits.

In court Monday, Young repeatedly questioned the constitutionality of the forfeiture, citing the excessive fines clause in the Eighth Amendment.

Young said courts with higher authority have heard and decided that fines exceeding four-times the maximum guideline are unconstitutional.

Regardless of how many permits Young orders to be forfeited, he made it clear he has no authority to decide what’s done with them.

NOAA’s guidelines call for the permits to be redistributed throughout the Northeast, which is why for months organizations and politicians have publicly called for redistribution or a deal that would remove Rafael from the industry. Many arguments focused on all 13, without consideration of a partial forfeiture.

Argument against redistribution

Allyson Jordan actually contributed to a portion of Rafael’s groundfish permits.

She sold two boats and four groundfish permits. Jordan said Maine’s fishermen had no interest in the permits until Rafael entered the picture.

“He bought permits and boats to make his business survive,” Jordan said. “I don’t believe they should be given back to the state of Maine. The state of Maine did nothing to help my industry, not to mention my business.”

“Everyone is coming out of the woodworks now,” Jordan said. “To be honest, they could have bought the permits.”

Support of redistribution

The Cape Cod Commercial Fishermen’s Alliance, which also manages the Cape Cod Fishermen’s Trust, also contributed to Rafael’s enterprise, but argued for redistribution of the permits as well as better monitoring.

According to Seth Rolbein, the director of the Cape Cod Fisheries Trust, Rafael acquired more nearly a million pounds of quota from the Trust.

From 2011 through 2015, the Trust leased 992,646 pounds of quota. The Trust has no records from 2010 and didn’t lease any to Sector IX after the U.S. Attorney released the indictment, tying Rafael to falsely labeling fish quotas.

“Our priority is to service our fishermen and our community,” Rolbein said. “If there are fish stock that our community is not using that we can not lease out at our subsidized rate to our own fishermen, we then will lease out to other sectors. The trust will lease fish to other sectors. But we will only do that once we’re satisfied that our own fishermen can’t use or don’t have use for that quota.”

What’s next?

The defense revealed Monday that Richard and Ray Canastra, of Whaling City Seafood Display Auction, have entered a Memorandum of Agreement to purchase Rafael’s entire fleet. Neither the U.S. Attorney nor NOAA have taken a final position on the sale.

Read the full story at the New Bedford Standard-Times

New England fishing council frozen until NOAA, judge done with Rafael

September 27, 2017 — GLOUCESTER, Mass. — There is no shortage of changes the National Oceanic and Atmospheric Administration could make to the way catch limits are regulated and enforced in the Gulf of Maine in the wake of the Carlos Rafael’s sentencing on Monday. But first it will take recommendations from the New England Fishery Management Council (NEFMC), and the 17-member panel this week put off staking out a position.

There is not yet a consensus in the group, which will wait to see how US District Court Judge William Young handles an argument over how much of Rafael’s fishing fleet will be seized by the federal government and what, if any, civil money penalties come from the National Oceanic and Atmospheric Administration before addressing the issue, said  John Quinn, NEFMC’s chairman.

“We’ve got a regulation in place and we’ve first got to see what and how that regulation is applied,” Quinn told Undercurrent News on Tuesday, during a break in the first day of the group’s three-day regular meeting at a hotel on the water here.

Young gave Rafael a 46-month prison sentence and ordered him to pay more than $300,000 in fines and penalties in a Boston federal court for misreporting nearly 783,000 pounds of fish between 2012 and early 2016, but he said he needed more time to consider the arguments made by prosecutors and Rafael’s defense team regarding an effort to seize his assets.

Read the full story at Undercurrent News

Trip Limit Decreased to 500 Pounds Gutted Weight per Trip for Commercial Harvest of Vermilion Snapper in Federal Waters of the South Atlantic Beginning October 2, 2017

September 27, 2017 — The following was released by the South Atlantic Fishery Management Council:

WHAT/WHEN:

The daily trip limit for the commercial harvest of vermilion snapper in federal waters of the South Atlantic is reduced from 1,000 pounds gutted weight to 500 pounds gutted weight, effective 12:01 a.m. (local time) October 2, 2017.

WHY IS THIS TRIP LIMIT REDUCTION IS HAPPENING:

  • NOAA Fisheries has determined 75 percent of the July-December commercial quota has been landed.
  • The commercial vermilion snapper trip limit is reduced when 75 percent of the July-December quota is reached in federal waters of the South Atlantic.

DURING THE TRIP LIMIT REDUCTION:

  • The 500-pound gutted weight trip limit applies to vessels with a South Atlantic Unlimited Snapper-Grouper Permit fishing for vermilion snapper in or from federal waters in the South Atlantic region.
  • The 500-pound gutted weight trip limit will remain in effect until the end of the current July-December 2017 fishing season or until the quota is reached and vermilion snapper closes, whichever occurs first.

Access this and other Fishery Bulletins from NOAA Fisheries Southeast Regional Office by clicking here.

NCFC Members Bring Concerns of Commercial Fishermen to House Hearing on Fisheries Bills

WASHINGTON (Saving Seafood) – September 26, 2017 – Members of Saving Seafood’s National Coalition for Fishing Communities testified this morning at a hearing of the House Natural Resources Subcommittee on Water, Power and Oceans on four bills that would modify federal fisheries management.

Jon Mitchell, mayor of the nation’s top-grossing fishing port New Bedford, Massachusetts and head of the New Bedford Harbor Development Commission, and Mike Merrifield, Fish Section Chairman of the Southeastern Fisheries Association (SFA) testified on the needs of commercial fishermen and reforms they would like to see to the Magnuson-Stevens Act.

Mayor Mitchell and Mr. Merrifield were joined by several other witnesses, including Assistant Administrator for NOAA Fisheries Chris Oliver, who testified on the reauthorization of the Magnuson-Stevens Act and the possibility of allowing additional flexibility in stock rebuilding. Earlier this year, commercial fishermen from around the country united to support Mr. Oliver’s appointment to NOAA.

At this morning’s hearing, the subcommittee considered two bills to amend and reauthorize the Magnuson-Stevens Act, as well as bills that would alter recreational fisheries and red snapper management.

While Mayor Mitchell called the Magnuson-Stevens Act “generally speaking…a success story” that has helped make America’s fisheries “at once among the world’s largest and most sustainable,” he called for more flexibility in fisheries management to allow fishermen to catch their full scientifically justified quota. In particular, he criticized the ten-year rebuilding requirement for overfished stocks.

“The ten-year rule is arbitrary, and its establishment was at odds with the underlying premise of regional management,” Mayor Mitchell said. “Regional councils should have the flexibility to set rebuilding timelines for stocks under their jurisdiction based on the unique biological and ecological conditions, and by giving appropriate weight to the economic wellbeing of fishing communities.”

The mayor was also critical of the Antiquities Act, by which presidents can designate large national monuments with little or no input from scientists and local stakeholders. The Act was recently used to create and enlarge several marine monuments, including the Northeast Canyons and Seamounts Marine National Monument in New England and the Papahānaumokuākea Marine National Monument in Hawaii.

“The continued use of a parallel process outside the Magnuson-Stevens Act, however well-meaning, ultimately works against the long-term interests of all stakeholders,” Mayor Mitchell said. “We all lose when the checks and balances employed in the council process are abandoned.  A decision-making process driven by the simple assertion of executive branch authority ultimately leaves ocean management decisions permanently vulnerable to short-term political considerations.”

Mr. Merrifield voiced skepticism of efforts to shift federally managed species over to state management, saying that states manage many fisheries in such a way that recreational fishermen get most or, in some cases, all of the fish.

“SFA firmly believes there should be no reward for exceeding [annual catch limits] and that all stakeholders – commercial, for-hire and private anglers – should each be held accountable for their impacts on our nation’s fish resources,” Mr. Merrifield testified. “We must resist changes to the law that could be interpreted to remove this accountability.”

Mr. Merrifield also testified about the SFA’s strong opposition to the RED SNAPPER Act, introduced by Rep. Garret Graves of Louisiana, which would give states more authority over red snapper management.

“The justification [for this legislation] is built entirely on the misconception that anglers can only fish for red snapper for 3 days (now 39 days) in federal waters in the Gulf of Mexico,” Mr. Merrifield said. “This is a false narrative. Anglers can fish 365-days per year for red snapper and all of the other 38 species in the Gulf reef fish complex. They can only kill red snapper on 3 (or 39) of those days. To be clear, there is unlimited fishing opportunity for recreational anglers in the federal waters of the Gulf which calls into question the actual need for, and defense of, this legislation.”

Read Mayor Mitchell’s full testimony here

Read Mr. Merrifield’s full testimony here

NEFMC to Review Carlos Rafael Sentence, Tuesday, September 26

September 26, 2017 — The following was released by the New England Fishery Management Council:

As many of you are aware, Carlos Rafael was sentenced today, September 25, 2017, in U.S. District Court in Boston.  The case reference is “United States of America v. Carlos Rafael No. 16-CR-10124-WGY.”  A press release describing the sentence was issued by the U.S. Attorney’s Office for the District of Massachusetts.  It is available at Rafael Sentencing.

The New England Fishery Management Council will review the sentence tomorrow morning, Tuesday, September 26, shortly after opening up its three-day meeting in Gloucester, MA at the Beauport Hotel.  Reappointed Council members will be sworn in, and the annual election of officers will be conducted before the Rafael case is discussed.

WEBINAR INFORMATION:  A webinar is available for this meeting.  Registration details can be found at webinar.  The agenda and meeting materials are at NEFMC.

THE SENTENCE:  The U.S. Attorney’s Office stated, “Carlos Rafael, 65, of Dartmouth, was sentenced by U.S. District Court Judge William G. Young to 46 months in prison and three years of supervised release, during which time he is banned from working in the fishing industry.  The Court also ordered Rafael to pay a fine of $200,000 and restitution to the U.S. Treasury of $108,929.  Rafael may also be subject to forfeiture of a portion of his fishing fleet, but the Court held that issue for further consideration.”

EXECUTIVE DIRECTOR’S COMMENT:  Immediately following the sentencing, New England Fishery Management Council Executive Director Tom Nies said, “Carlos Rafael is a criminal who stole from his fellow fishermen and the public by intentionally misreporting his catch.  His conduct was reprehensible and the criminal penalties he received are well-deserved.  We once again thank our government enforcement agencies for bringing him to justice.”

WHAT RAFAEL DID:  “From 2012 to January 2016, Rafael routinely lied to the National Oceanic and Atmospheric Administration (NOAA) about the quantity and species of fish his boats caught in order to evade federal quotas designed to guarantee the sustainability of certain fish species,” stated the U.S. Attorney’s Office.  “During that period, Rafael misreported to NOAA approximately 782,812 pounds of fish, telling NOAA that the fish was haddock, or some other abundant species subject to high quotas, when in fact the fish was cod, sole, or other species subject to strict quotas.  After submitting false records to federal regulators, Rafael sold much of the fish to a wholesale business in New York City in exchange for duffle bags of cash.  During meetings with the undercover agents, Rafael said that in his most recent dealings with the New York buyer he received $668,000 in cash.  Rafael smuggled at least some of that cash out of the United States to his native Portugal, hiding it there to evade federal taxation on that revenue.”

GUILTY PLEA:  The U.S Attorney’s Office stated, “In March 2017, Rafael pleaded guilty to one count of conspiring to commit offenses against the United States, 23 counts of false labeling and fish identification, two counts of falsifying federal records, one count of bulk cash smuggling, and one count of tax evasion.  He was initially arrested and charged in February 2016.  Rafael, the owner of Carlos Seafood Inc., based in New Bedford, Mass., owned 32 fishing vessels through independent corporate shells and 44 permits, which amounted to one of the largest commercial fishing businesses in the United States.”

Timeline: Case of Carlos Rafael

September 26, 2017 — Feb. 26, 2016: Federal authorities raided Carlos Seafood on South Front Street in New Bedford, arresting owner Carlos Rafael, 64, and bookkeeper Debra Messier, 60, both of Dartmouth, on charges of conspiracy and falsifying records. Rafael was held without bail; Messier was released on a $10,000 unsecured bond.

March 2, 2016: Rafael is allowed to return home under strict conditions of a $1 million bond; he is allowed to continue working, too. Rafael and his wife, Conceicao, agree to place their Tucker Lane home in North Dartmouth and Carlos Seafood as collateral for the bond.

March 25, 2016: Prosecutors receive an extension of the deadline to indict Rafael. The length of the deadline’s extension is not disclosed.

May 4, 2016: Rafael has been indicted by federal prosecutors for lying about fish catches and smuggling cash to Portugal through Logan airport in Boston, in a multi-year scheme involving hundreds of thousands of dollars, according to court documents. The indictment lists 27 counts against Rafael, for charges including conspiracy, false entries and bulk cash smuggling. Rafael is alleged to have falsely reported the species of more than 815,000 pounds of fish to the National Oceanic and Atmospheric Administration (NOAA) between 2012 and January 2016, according to the Office of U.S. Attorney Carmen Ortiz.

May 4, 2016: Antonio Freitas, 46, of Taunton is charged with using his special assignment status as a member of the Department of Homeland Security Task Force, which gave him access to restricted areas of Logan International Airport, to help Rafael smuggle cash out of the U.S. Freitas is a member of the Bristol County Sheriff’s Honor Guard.

Read the full story at the New Bedford Standard-Times

Members Review Proposals to Modernize Federal Fisheries Management

September 26, 2017 — WASHINGTON — The following was released by the House Committee on Natural Resources:

Today, the Subcommittee on Water, Power and Oceans held a legislative hearing on a series of bills aimed at improving federal fisheries management for commercial and recreational fisherman.

“Many of you here today probably consider this to be a fishery hearing, but I assure you it is much more than that. Whether we are talking about a commercial, recreational, or charter boat operation, the working waterfront that provides shore-side support, a boat manufacturer, or your local mom and pop bait and tackle shop, today’s hearing is about supporting American small businesses,” Subcommittee Chairman Doug Lamborn (R-CO) said. 

H.R. 200, introduced by Chairman Emeritus Don Young (R-AK), reauthorizes the Magnuson-Stevens Fishery Conservation and Management Act. Since the last reauthorization, fishermen’s access has been eroded by federal agencies that ignore public input and rely upon outdated science in management decisions. Existing implementation of the law has resulted in negative impacts to local economies and a greater regulatory burden on recreational and commercial fishermen.

“My bill works to strengthen the Magnuson-Stevens Act by giving our nation’s regional fisheries councils the added flexibility they need,” Young said. “As a father of the original 1976 legislation, my goal is to reauthorize the MSA with a focus on maintaining the species; ensuring they’re healthy, can retain themselves and can continue to support coastal communities that rely on these fisheries.”

The Committee also discussed two bills from Rep. Garret Graves (R-LA), H.R. 2023, the “Modernizing Recreational Fisheries Management Act of 2017,” and H.R. 3588, the “RED SNAPPER Act,” which looked more closely at systemic issues facing recreational fishers and more specifically red snapper management.

“It is my hope that we can use these bills in front of us today to produce a strong, bipartisan Magnuson-Stevens reauthorization that supports jobs and our fishermen by strengthening the science, data, and process used in federal fisheries management,” Lamborn added.

Chris Oliver, Assistant Administrator for the National Oceanic and Atmospheric Administration (NOAA), conveyed the administration’s support for the added flexibility for innovative, regional management plans.

“NOAA Fisheries stands ready to work with the Congress to craft a reauthorization bill that addresses current fishery management challenges and ensures the Nation’s fisheries are able to meet the needs of both current and future generations,” Oliver stated.

Click here for full witness testimony.

South Atlantic Council Requests Allowing Harvest of Red Snapper in 2017 and 2018

September 26, 2017 — CHARLESTON, S.C. — The following was released by the South Atlantic Fishery Management Council:

Members of the South Atlantic Fishery Management Council voted today to approve a request to NOAA Fisheries that would allow fishermen access to red snapper in federal waters in the South Atlantic beginning in mid-to late October this year. If approved by NOAA Fisheries, it will be the first time since 2014 that the red snapper fishery has been open in federal waters off the coasts of the Carolinas, Georgia, and the east coast of Florida. The Council is requesting that NOAA Fisheries allow an interim annual catch limit (recreational and commercial) of 42,510 fish for 2017 via an emergency rule. The annual catch limit would allow for a recreational mini-season likely beginning the end of October, with approximately 6 to 12 days of fishing over a period of 3-day weekends. The recreational bag limit would be 1 fish per person/day with no minimum size limit. Commercial harvest would be allowed with a 75-pound trip limit. The recreational sector is allocated 71.93% of the total catch limit. If the Council’s request is approved, the number of days and specific dates of the recreational mini-season will be determined by NOAA Fisheries. A decision is expected in the coming weeks and will be announced by NOAA Fisheries.

In addition to the emergency rule request to allow an opening this year, the Council also approved measures in Amendment 43 to the Snapper Grouper Fishery Management Plan with the intent to have a red snapper season in 2018. The amendment would revise the process to calculate the annual catch limit for red snapper, allowing mini-seasons for red snapper beginning in July. If allowed, the recreational fishery would open the second Friday in July (July 13, 2018) and the commercial fishery the second Monday in July (July 9, 2018). The annual opening dates for the fishery were established through an earlier amendment.

Under the Council’s approved preferred alternative, the 2018 annual catch limit would also be 42,510 fish. Because fishing pressure would be greater during the summer months in most areas, it is estimated that the recreational mini-season would last between 4 to 7 weekend days with a 1 fish per person/day bag limit and no minimum size limit. The commercial trip limit would remain at 75 pounds. The number of recreational fishing days would be determined by NOAA Fisheries and announced prior to the July opening. The Secretary of Commerce must approve Amendment 43 before it is implemented.

There was much discussion on various management alternatives as Council members reviewed public input. Public hearings on Amendment 43 were held in August and over 230 written public comments were recently received on both the emergency rule request and Amendment 43. Public comment was also taken during today’s meeting. “We’ve consistently heard from our constituents about the increasing number of red snapper encountered and concerns that harvest has been prohibited for the past four years,” said Council Chair, Dr. Michelle Duval. “The majority of comments support allowing a limited harvest of red snapper.”

The Council’s decision to move forward with options to establish an interim annual catch limit and allow limited harvest of red snapper was based in part on the public testimony and support. The Council’s Scientific and Statistical Committee had recommended acceptable biological catch levels for red snapper following a 2017 stock assessment using both landings and estimated discards. Annual catch limits are based on those recommended catch levels. However, NOAA Fisheries later stated that using recreational discard estimates is likely ineffective for monitoring red snapper removals due to uncertainty in the estimates of discards. This inhibits the ability to set an acceptable biological catch that can be effectively monitored. In addition, the Council considered increases in the numbers of red snapper observed through a long-term scientific survey using fish traps.

Council members also noted the positive social and economic benefits of allowing mini-seasons beginning this year, especially on the heels of recent damage to fishing communities by Hurricane Irma.

State agency personnel will work diligently to collect information from fishermen if harvest is allowed. Personnel will be stationed at boat ramps, marinas, and other locations to gather data, similar to data collected during the 2012-2014 mini-seasons. “The Florida Fish and Wildlife Conservation Commission, Fish and Wildlife Research Institute will be conducting surveys of private recreational anglers and charter-for-hire crew,” explained Jessica McCawley, Council representative for FWC. “Additionally, biologists will be collecting tissue samples (ear bones and gonad samples) to evaluate the sizes, ages, and reproductive condition of the fish being harvested.” Council members noted that additional data collected during the mini-seasons would be useful in future management decisions.

Private recreational fishermen will also have an opportunity to report their catch information as part of a voluntary pilot project using the mobile iAngler tournament app. The free mobile app will allow fishermen to report their landings of red snapper, the number of fish released, depths fished, and other valuable information. Additional details will be publicized from the Council office as they become available.

“It is important for fishermen to remember that this is their red snapper resource,” explained Dr. Duval. “It is imperative that fishermen do everything possible to minimize the number of red snapper released during the season openings and use best fishing practices to improve the survival of released fish. Anglers are encouraged to move away from area populations after catching their bag limit and to use descending devices to reduce the impacts of barotrauma, especially when fishing in depths over 100 feet.” Dr. Duval also noted the rate of harvest in 2017 will determine the length of the 2018 red snapper season. “We must be cautionary in balancing access to the fishery without negatively impacting the sacrifices made thus far as this important stock continues to rebuild.”

The Council will continue its meeting this week through Friday. Additional meeting information is available at: http://safmc.net/2017-september-council-meeting/.

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