PORT FOLIO Column: Ramon Cuyco Column

Distinguishing fish imports from smuggling

Dec 13, 2022, 3:00 AM
Ramon Cuyco

Ramon Cuyco


FISH importation and exportation are legal and regulated activities based on RA 8550 or the Fisheries Code pf 1998. Fish trade is regulated as it affects domestic food security and production as well as maintaining local marine biodiversity.

The Code also allows importation only when certified by the Department of Agriculture and the fishery advisory council; that regulations have been complied with and fish imports by canning and processing purposes, which do not require certification but within the provisions of the Code. A permit is required to import/export fishery products of whatever size, stage or form for any purpose.

Based on the above provisions of the Code, fish trade is regulated by RA 8550 and by rules issued by DA, BFAR, Philippine Fisheries and Development Authority and other issuances of other operating units.

Perusing the above provision tells us that indeed the country’s fish trade is regulated by RA 8550, as well as by the various rules and regulations promulgated by the implementing agencies—in this case, those coming from the Department of Agriculture (DA), the Bureau of Fisheries and Aquatic Resources (BFAR), the Philippine Fisheries Development Authority (PFDA), and other issuances of other operating units.

On Sept. 20, 1999, the DA-BFAR promulgated Fishery Administrative Order (FAO) 195 to implement the intention of the law. FAO 195 has been implemented by DA-BFAR year in and year out since its promulgation, contrary to the [mis]impression that FAO 195 is just being implemented now after over 20 years of hibernation.

Today, FAO 195 is the bone of contention among state legislators, administrative regulators, consumers, fish traders, and other industry “players.”

Before we discuss FAO 195, it will help us greatly if we discuss FAO 259, that is seldom touched in public discourse— which is the first condition set off by the Code particularly the line: “only when the importation has been certified as necessary by the Department.”

Clearly, fish importation shall be preceded by a certification of DA attesting to the need for importing fish from abroad. This document is called “Certificate Of Necessity To Import” or CNI, which I’d rather call CONTI.

Fish importation under this mode is covered by FAO 259—“Rules and Regulations on the Importation of Frozen Fish and Fishery/Aquatic Products for Wet Markets during Closed Season and Off-Fishing Seasons or During the Occurrence of Calamities.”

This DA-BFAR issuance was promulgated in 2018 and took effect after fifteen (15) days from “publication in the Official Gazette and/or in two (2) newspapers [of] general circulation, in this case published in The Manila Times and The Philippine Star on September 14, 2018.

What is not publicly discussed is the legal requirement on the determination of the necessity to import to be done “in consultation with the FARMC.” In short, the DA or any of its officials, or the BFAR, cannot arrogate unto themselves the sole prerogative of determining the necessity to import—but “in consultation with the FARMC.”

Under Section 69, FARMCs are established in the national and local levels, formed by fisherfolk organizations/cooperatives and NGOs in the locality to be assisted by LGUs and other government entities. But since the subject matter with the DA-BFAR—national agencies they are referred to as national FARMCs or NFARMCs, consisting of 15 members.

It is clear that: before the DA can ever issue a CONTI, the collegial body called the NFARMC must discuss among themselves the factors that rightfully constitute the “necessity to import,” including the volume, the species—if necessary, the period within which to bring in—so as not to overlap with the onset of the open fishing season in the country.

Absent this consultation with the NFARMC, the CONTI-driven fish importation has no leg to stand on, thus, illegal. The NFARMC cannot behave as a “rubber stamp” of the DA and cannot act separately or individually but while convened in session, including virtual or zoom meetings.

Were the CONTIs issued by the DA preceded by what the law requires—a collegial deliberation? Assuming consultations happened, was the process complied with, especially in the areas specifically provided for by RA 8550. Should not the consumers be represented in the NFARMC as well?

Unless the foregoing points have been essentially complied with, then the consultation process required by the law is infirmed. And with an infirmed CONTI, all allocations and the subsequent import permits issued under FAO 259 are likewise infirmed—illegal, or irregular. All because, the consultation process was ignored by the DA.

Unfortunately, there was no effective consultation. And this was the root cause of the controversy that stirred the hornets’ nest.

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