Hawai`i Longliners Attempt End Run Around Bigeye Quotas in Western Pacific

For the first time, the Hawai`i longline fleet is operating under catch limits for its most lucrative haul – bigeye tuna – throughout virtually the entire area it fishes. Yet the trade group representing the 125 or so longline vessels sailing out of Honolulu has attempted to make an end run around the new quota in the western and central Pacific. In fact, if all goes according to plan, the fleet will actually be able to increase its catch from that area by 12 percent over what it hauled in last year.

The quota in the western and central Pacific (waters west of 150° West longitude) was imposed last December, when the multi-nation Western and Central Pacific Fishery Commission (WCPFC) adopted a measure to address overfishing of bigeye by requiring most member states to cut their catches. Stocks of bigeye tuna were found to be plummeting to the point where they were less than a quarter of the population estimated to exist before industrial fishing began, according to a stock assessment prepared for the commission. The commission responded by imposing restrictions whose stated purpose was to achieve “a minimum of 30 percent reduction in bigeye tuna fishing mortality from the annual average during the period 2001-2004.”

A special exemption was carved out for the Hawai`i longliners, though, which face a mandatory cut of just 10 percent from the catch recorded in 2004. The less harsh treatment for the longliners, explained William Gibbons-Fly, the State Department official who represented the United States at the talks last December, was won at some difficulty. “We were in a room where all the other developed countries …were prepared to agree to reductions in their longline fleet of 10 percent this year and each year for the next two,” Gibbons-Fly said at the July meeting of the Western Pacific Fishery Management Council (Wespac), the agency that makes recommendations to the National Marine Fisheries Service on fishing measures in U.S. waters around Hawai`i, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and remote U.S.-flagged islands in the Pacific.

“Based on conversations we had with longline representatives from the United States that the longline fleet in Hawai`i has different characteristics from longline fleets in other countries that operate big freezer vessels, we argued that the Hawai`i fleet deserves special treatment, since it addresses the fresh fish market. We got the commission to agree that the Hawai`i longline fleet would have only a 10 percent cut one year, and no cuts after that.”

In the final language of the commission’s measure, Gibbons-Fly continued, “criteria were developed to apply specifically to the U.S. fleet without mentioning the U.S. fleet by name. It’s not easy to sit in a room with 26 other countries and say you want a special deal. But we did it, and were happy to defend the interests of the fleet in Hawai`i.”

Use of the 2004 catch as a baseline instead of the 2001-2004 average was also a special nod to Hawai`i, Gibbons-Fly noted. This resulted from the regulatory turmoil in the longline fishery during the early years of the decade, when litigation over the fleet’s harm to sea turtles closed the longline fishery for a time.

Second Helpings

But the favors granted to the Hawai`i fleet were not enough to satisfy the members of the Hawai`i Longline Association. Exploiting language in the WCPFC measure that allowed a 2,000-metric-ton limit on bigeye catches to “participating territories” and which altogether exempted from any quotas “small island developing state members and participating territories … undertaking responsible development of their domestic fisheries,” the HLA worked out a “charter agreement” with American Samoa, allowing HLA vessels to take up to 1,500 metric tons of its quota.

Under the 10 percent cut, the Hawai`i longliners would be allowed to catch no more than 3,763 metric tons (8.3 million pounds) of bigeye tuna in the area under WCPFC’s jurisdiction, an amount that is roughly 20 percent below the fleet’s average annual catch of bigeye in the western Pacific for the years 2005-2008. With the American Samoa deal, however, the total catch allowed to Hawai`i vessels soars nearly 30 percent, to 5,263 metric tons (11.6 million pounds). That figure is only slightly less than the 11.8 million pounds of bigeye from the western Pacific that was landed by the Hawai`i longliners in 2007, a record year.

What’s more, not one of the bigeye tunas caught under the additional allotment provided for in the agreement would have to be caught in waters around American Samoa – or even landed there.

Is it a Ruse?

According to William Robinson, head of the Pacific Islands Regional Office of NMFS, he had been told by HLA representatives that they were trying to work something out with American Samoa, but had no details until well after the deal was signed on April 20. In May, he and Gibbons-Fly of the State Department participated in a conference call with past Wespac chair Jim Cook, HLA’s legal affairs coordinator (and co-owner with current chair Sean Martin of several longline vessels). Robinson and Gibbons-Fly apparently voiced some skepticism over the motives of HLA in entering into the agreement.

In a follow-up letter to them of May 21, Cook attempted to address this point. “We understand that there are concerns that the charter agreement is, in effect, a ruse to circumvent bigeye tuna fishing limits imposed under the Western and Central Pacific Fisheries Convention [sic],” Cook said. He made no secret of the fact that HLA had “an economic incentive to enter into this charter agreement,” but went on to say that this fact “neither renders the contract a ruse nor negates American Samoa’s legitimate purposes” in signing the pact. Cook pointed to the need of American Samoa “to tangibly and responsibly promote development of its commercial fisheries,” U.S. support for which, he added, “has not materialized.”

Cook characterized the charter agreement as requiring “substantial legitimate contributions toward funding the needed infrastructure … and toward training local fishermen and shore side workers to perform essential functions.” Yet no language in the agreement backs up this claim. Instead, the HLA is merely to provide vessels that American Samoa can charter: as the agreement itself defines the term, “ ‘Charter’ means that an Operator [i.e., HLA member] provides a U.S. flagged Vessel, equipped with crew and other necessary personnel, who shall remain the servants of the Operator, for the use of Territory under this Agreement…” No mention is made of requiring that some part of the crew be from American Samoa, nor is there any requirement that HLA directly give the territory funds to support training or build infrastructure.

According to Cook, it was representatives of the territorial government who requested “that the sums negotiated under the agreement be placed in the Western Pacific Sustainable Fisheries Fund… These funds – up to a quarter of a million dollars in 2009 [actually $225,000 per the agreement] – are dedicated to responsible fisheries development in American Samoa, including, for example, pier construction and other capital improvements essential … to locating a viable commercial fishery in American Samoa.”

Under the Magnuson-Stevens Act (MSA), the sustainable fisheries fund is to receive payments from foreign fleets authorized to fish in U.S. waters and to receive fines and penalties from vessels found to be illegally fishing in those waters. While the fund is to help pay for improvements called for in the marine conservation plans for Hawai`i, the U.S. territories as well as the remote U.S.-flagged islands, whether the fund can even receive donations of the type proposed in the HLA-American Samoa agreement is a question that has not yet been resolved. The MSA is unclear on this point.

Cook defended the agreement as providing American Samoa with a “charter fishery that is ‘integral’ and that makes an important contribution toward ‘responsible development of domestic fisheries.’”

“Respectfully, we think suggestions by NMFS and [the State Department] in our discussions that the Government of American Samoa may have no role in determining what is ‘integral’ and what is ‘responsible’ for American Samoa, and that agencies of the U.S. government know better, harkens back to a bygone era of colonialism that has no foundations in the provisions of [the WCPFC measure], current U.S. law and U.S. policy.”

Rules of the Road

In July, the National Marine Fisheries Service published a proposed regulation to implement the WCPFC conservation and management measure for U.S. catches of bigeye by the longline fleet. (Regulation of the U.S. purse seine fleet, which represents the largest part of the bigeye catch, was undertaken in a separate rule-making a month earlier.)

The draft rule blasted HLA’s agreement out of the water. NMFS proposed to treat bigeye tuna landed in Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands “as fish that are harvested in support of the development of their domestic fisheries.” The requirement that fish actually be landed in a territory thwarts the HLA’s evident intention to be able to use the quota of American Samoa without having to bring fish to port there.

The draft rule continued, noting: “As a general rule, tuna taken within the [Exclusive Economic Zone] around Hawai`i have been landed in Hawai`i, and have acquired no direct or indirect connection to the fisheries of any of these three participating territories.” If the fish were caught in the EEZs around the territories and landed there, however, they “would not be subject to the limit” imposed on U.S. longliners.

The only meaningful comments came from an attorney representing the Hawai`i Longline Association and from Wespac. Both had lengthy objections.

HLA attorney Jeffrey W. Leppo, of the Seattle firm Stoel Rives, argued that the proposed rules would erect “new barriers specifically designed to block American Samoa, Guam and CNMI from fishing under their separate [bigeye tuna] catch limits.”

In some 14 pages of comments, Leppo assails NMFS’ interpretation of the WCPFC measure. Agreements such as HLA’s with American Samoa, Leppo argued, were in fact encouraged by the WCPFC: “the WCPFC intended to promote longline [bigeye tuna] fisheries development in participating territories,” he wrote, “including through the use of charters, leases and other similar mechanisms.” Neither the Magnuson-Stevens Act nor its regulations, Leppo continued, “address charter agreements as contemplated [by WCPFC] and as executed by American Samoa.” With the U.S. having signed on to the WCPFC measure, he argued, “NMFS is not authorized to adopt implementing regulations that circumvent the express provisions” of the measure, and it cannot “pick and choose among those provisions [of the measure] it likes and dislikes so as to implement one of WCPFC’s laudable purposes (bigeye tuna conservation) while entirely frustrating another clear, important and laudable purpose (development of bigeye tuna fisheries of participating territories)…”

Leppo described NMFS’ proposed rule as “hurried and ill-considered” and “contrary to applicable international and domestic law, and otherwise unsound.”

Those were kind words compared to what Kitty Simonds, executive director of Wespac, wrote in her comments. NMFS’ proposed rule “reveals an almost willful lack of consideration of the wider perspective in terms of potential impacts of the bigeye catch limit,” she said. It represents “a narrow, myopic interpretation” of the WCPFC measure and significantly impacts “the legitimate rights of the U.S. territories.”

‘Final Action’ in October

At its July meeting in Kona, in a session that went until nearly midnight, the Western Pacific Fishery Management Council discussed the proposed rule. Vice chairman Manny Duenas, of Guam, argued that the requirement that longliners land their catch in the territory against whose quota the catch counts was unfair, since no similar requirement is imposed on purse-seiners. Gibbons-Fly testily disputed that: “You’re wrong on this – as you are on so many other” points,” he said.

In the end, the council approved a recommendation that NMFS revise its draft rule, to allow a vessel’s catch to be attributed to its permit rather than to its landing location. According to the council’s press release, Guam, American Samoa, and CNMI have been precluded from using charters as a means of reaching their bigeye tuna catch limits by the regulatory structure of the council’s current fishery management plan (FMP).

“The council will take final action at its October 2009 meeting on such amendments to the Pelagics FMP as may be necessary to more effectively utilize these limits, such as allowing U.S. participating territories to enter into agreements and arrangements with U.S. fishing vessels and U.S. fishing entities,” according to the press release.

Current projections suggest that the Hawai`i longliners will hit the 3,763-metric-ton catch limit on bigeye around November 1. According to one source at NMFS’ Honolulu office, publication of a final rule on the bigeye tuna quota for longline vessels won’t occur until perhaps October.

While the quota applies only to bigeye tuna, it is at this point an open question whether longline vessels will be allowed to continue to fish for other species or whether they will be required, once the quota is reached, to avoid the waters under WPCFC jurisdiction altogether. The Pelagic Plan Team, which advises Wespac on matters relating to the management of open-ocean fisheries, commented on this problem in its report to the council last July:

“The Plan Team recommends that the Council, in its consideration of approaches to implement the WCPFC bigeye tuna catch limit, consider the implications if the Hawai`i-based longline fleet is allowed to continue to fish in the Western and Central Pacific Ocean once the WCPFC bigeye tuna catch limit has been reached. Vessels may target other tuna species which may have implications on current WCPFC conservation and management measures for … yellowfin and North Pacific albacore. Further, if vessels continue to fish, [bigeye tuna] will be caught and discarded. Although many [bigeye tuna] discards may survive, additional mortality would occur, contrary to the intent of the WCPFC limit to reduce mortality. The Pelagic Plan Team recommends research on the post-release mortality of longline caught bigeye tuna.”

Another option to deal with the catch quota – one that avoids both the problem of fishing for other species while continuing to catch (and discard) bigeye tuna and the alternative of having vessels sit in port for the last two months of the year, when bigeye tuna is in high demand – is to distribute catch privileges to longline vessels. While a so-called LAPP (for Limited Access Privilege Program) would be difficult to develop in the short term, in the long term, it has several advantages. First, it does away with the derby aspect of quotas (which occurs when boats race to catch as much of the quota as they can) by allocating shares of the quota to the vessels participating in the fishery. Second, it avoids market-disrupting fishery closures, by allowing holders of fishery shares to set their lines whenever they wish, so long as they have not reached their limit.

In recent Wespac meetings, the prospect of developing a LAPP for bigeye tuna has been the subject of long discussions. With the WCPFC quota now a reality, those discussions are sure to take on new urgency at the October meeting.

Bottom Lines

As part of the rule-making process, NMFS performed a regulatory impact analysis, which, among other things, looked at the costs and benefits that the proposed rule would have. Charles Karnella of NMFS’ Honolulu office did the analysis, which found that the average loss in revenues for each vessel under the new catch quotas would be between $100,000 and $200,000. (According to Karnella’s report, average annual vessel revenue for the longline fleet before the quota was roughly $500,000.)

But Karnella also pointed out the benefits. “The proposed action can be expected to have a positive effect on net benefits that the United States can potentially enjoy through the maintenance of a productive [western and central Pacific Ocean] bigeye tuna stock,” he wrote. “Those effects, however, cannot be quantified and they would occur only if the other fishing nations … implement similar actions … or more conservation actions beyond the three-year duration of this WCPFC-mandated action.”

On the whole, Karnella’s summation of the effects of the quota left little doubt as to his glum view: The WCPFC measures “are intended … to achieve the desired 30 percent reduction in fishing mortality. However, given a number of compromises and exemptions available [in the measure], it is clear that the collective longline and purse seine measures are unlikely, even if fully implemented by all the WCPFC members, to result in the desired 30 percent reduction.” Still, he continued, “the likely cumulative effect … is not nil, and any fisheries exploiting … bigeye tuna, including the Hawai`i longline fleet, would benefit from that effect.”

In a phone interview, Karnella said that many things in the WCPFC measure, adopted in haste, don’t make sense or make it difficult to implement. With respect to the provisions regarding developing island states, he said, “they can catch an unlimited amount of bigeye. If they license distant-water fishing nations to fish in their waters, that’s not likely to result in a reduction of the catch of bigeye.

“On the one hand, you don’t want to prevent developing states to enter into the fishery, but it doesn’t do anyone any good if you allow the fishery to be overfished. It doesn’t help them. It doesn’t help anyone.”

Under the December measure taken by Western and Central Pacific Fisheries Commission, catch reductions are imposed on purse seiners and longliners taking yellowfin tuna as well as bigeye. In general, no more yellowfin can be taken than were caught by participating nations on average between 2001 and 2004 or, in the case of Hawai`i longliners, the catch reported in 2004.

For Hawai`i, that means the yellowfin catches from the western and central Pacific cannot exceed 694 metric tons (1,526,800 pounds) for the current year through 2011. NMFS has told the Western Pacific Fishery Management Council that it will not be making any rules to enforce this cap and that finding ways to address this measure would be up to the council.

Five years ago, a quota was placed on catches of bigeye in the eastern Pacific (east of 150° West meridian). That lapsed for several years, but this year, it is being imposed again by the Inter-American Tropical Tuna Commission (IATTC). Purse seiners, which catch juvenile bigeye when targeting other tunas, cannot fish for specified periods – starting at 59 days in 2009, increasing to 62 days in 2010, and up to 73 days in 2011. In general, the longline catches of each member are not to exceed 500 metric tons a year or the weight of their catch in 2001, whichever is greater.

In 2001, the total catch of the domestic longline fleet, composed of Hawai`i and California boats, came to 150 metric tons. More recently, however, the Hawai`i fleet alone has taken in catches ranging from 79 metric tons (in 2006) to 1,275 mt (in 2008), with an average annual catch of 579 mt for the 2005-2008 period. At the same time that the Hawai`i share has grown, the California proportion has shrunk. In recent years, just three longliners have operated from the U.S. west coast.

But whether the IATTC cap will have the desired effect of reducing bigeye catches is a matter of some dispute.
Paragraph 1 of the IATTC resolution C-09-01, which imposes the bigeye quotas, states that it is applicable from 2009 to 2011 to all purse seiners of more than 187 metric tons carrying capacity and to all longline vessels over 24 meters (about 78 feet) that target yellowfin, bigeye, and skipjack tuna in the eastern pacific Ocean. Most Hawai`i longline vessels are long enough to be subject to the quotas.

The reasoning behind the exemption, according to one NMFS source, is that some Latin American countries “wanted it in there because they have so-called artisanal fleets with vessels under 24 meters in length. The resolution seems to say, ‘go for it’ if you’re less than 24 meters.”

Rule-making to implement the IATTC resolution is being handled by NMFS’ Southwest Regional office, in Long Beach.

— Patricia Tummons

Volume 20, Number 3 September 2009