IN her book, “Regulatory Agencies: Laws Without Legislation,” legal luminary Catherine Crier said that regulations have the effect of laws but don’t even need a majority vote to implement.
Crier said that “[a]n enormous bureaucracy supplements and often supersedes the rule- making by our representatives,” making them independent source of power and a foil for legislators and lobbyists.” She noticed that “[m]ost agency work is done in relative obscurity, but on inspection, the favors and influence peddling are as apparent as in the more public realms of politics.” Then she articulated that “[a]gencies are often scapegoats for actions actually taken by lobbyists and members of Congress.”
Adopting this in Philippine context, particularly the fishery sector and those promulgated by the Department of Agriculture (DA) and the Bureau of Fisheries and Aquatic Resources (BFAR).
Section 61(c) of the Philippine Fisheries Code of 1998 (RA 8550, February 25, 1998) provides: “Fishery products may be imported only when the importation has been certified as necessary by the Department in consultation with the FARMC, and all the requirements of this Code, as well as all existing rules and regulations have been complied with.”
The Code also provides that fish imports for canning/processing purposes only may be allowed without the necessary certification, but within the provisions of Section 61(d) of this Code.”
Based on this provision, we get the following prescriptions: (a) fish importation is not banned—at most, it is regulated; (b) fishery products may be imported only when the importation has been certified as necessary by the Department (DA)—the instrument of certification is known in the industry as CNI; (c) DA’s certification must be done in consultation with the FARMC—it simply means: “no consultation, no certification”; (d) fish importation must comply with all the requirements of the RA 8550, as well as all existing rules and regulations; and (e) only fish imports that are exclusively for canning/processing purposes may be allowed without the necessity of procuring a CNI—the requirement of import permit under Section 61(d) however still applies.
It is clear then that canners/processors are allowed to import fish without being required to get CNI or CONTI, except that they still need to secure import permit from the DA every time they import fish. Importation under this mode is governed by FAO 195. Nothing wrong, nothing irregular, nothing discriminatory.
But the problem arose when the virus of fish smuggling was devised by the DA-BFAR, known in the industry as INSTITUTIONAL BUYER (IB). This classification is not in the law. It is a creation of a regulation—FAO 195, thus IB is a classification of doubtful legality.
Yet, IBs continue to exist and remain a major bloc in the fish importation business. Sadly, IBs are conduits to fish smuggling.
In practice, IBs claim to be importing for the hotel and restaurant operators. As such, they are allowed to import on a year-round basis, without the need to secure allocation from the CNI- or CONTI-covered importation.
But they are not canners/processors. They are, by any stretch of imagination, fish traders that should not be allowed under FAO 195, which must be consistent with Section 61(c) and (d) of RA 8550).
Even the IBs’ volume of importation is beyond the absorptive capacity of hotels and restaurants. There is nothing that can prevent the IBs from trading their fish imports in the “wet markets. In short, IBs, despite their not being canners/processors but mere importers accredited by the Philippine Fisheries and Development Authority (PFDA) and BFAR, are enabled to dispose their imported stuffs even outside the contemplation of hotels and processors. There are IBs that supply small restos and turo-turo. If this is not violative of the law, then FAO 195 must have missed its rationale.
There’s a way of checking this modus: compliance-monitoring and audit of IBs’ delivery and disposal report. If only they will, they could.