Since 2009, the longline fleet has chafed under a quota of 3,763 metric tons a year established by the Western and Central Pacific Fisheries Commission (WCPFC. If approved, the new rule, Amendment 7 to the pelagic plan, would effectively increase the quota by nearly 80 percent, to 6,763 mt.
Congress Led the Way
In many ways, the proposal amps up a system that was put in place two and a half years ago. In November 2011, just as the Hawai`i fleet was about to come up against the quota, language was inserted into an appropriations bill authorizing the HLA to enter into agreements with U.S. territories in the Pacific. Such agreements allowed the fishing vessels to catch up to an additional 1,000 metric tons of bigeye, allocated now to the territory rather than charged against the Hawai`i quota. Under the WCPFC conservation measure then in place, developing island states and “participating territories” (including Guam, the Commonwealth of the Northern Mariana Islands, and American Samoa) could take up to 2,000 mt of bigeye – or, if they were attempting to develop their fishery responsibly, an unlimited amount.
Such arrangements, says Section 113 of the 2012 appropriations act, “are to be considered integral to the domestic fisheries of the territories” – giving a nod to the WCPFC concerns – but it then goes on to state that the territories cannot impose any requirement as to where the vessels have to fish or land their catch. In other words, although the fish caught are to be attributed to a territory (American Samoa in 2011 and 2012, and CNMI in 2013), the vessels catching them don’t have to go anywhere near the islands, employ island residents, or use island resources. The only condition is that the HLA pay an unspecified amount into a fund that is to support fishery development projects in the territories. The amount is to be worked out between the HLA and the territory.
The arrangement was blessed through 2013, but Congress did not reauthorize the scheme for this year. On December 30, one day before the congressional authority lapsed, NMFS published notice of the proposed Amendment 7 in the Federal Register.
Should the plan win NMFS’s approval, it will have come over the strenuous objections of organizations that have in the past been a burr in the longliners’ saddle. The Center for Biological Diversity and the Pew Charitable Trusts were able to generate thousands of comments from their members and followers in opposition to the proposal. In addition, David Henkin of the Mid-Pacific office of Earthjustice, representing the Center for Biological Diversity, and Amanda Nickson, on behalf of Pew, submitted extensive comments that argue the plan not only subverts an international treaty, but it also cannot help but further deplete bigeye stocks that urgently need to be conserved.
On the other hand, attorney Jeffrey Leppo, representing the HLA, contends that even though the measure would allow his clients to take more bigeye than allowed under the current quota, it would in fact promote conservation. This, he says, will result from having the fish be caught by Hawai`i- based boats instead of by vessels flagged to nations whose fishing vessels are not as “rigorously managed, monitored, and enforced” as those in the United States.
The Preferred Alternative
To satisfy requirements of the National Environmental Policy Act, NMFS prepared an environmental assessment that lays out various alternatives considered and describes the impacts they can be anticipated to have on the affected environment.
The preferred alternative – Alternative 4(b) in the draft EA – allows the kind of agreements sanctioned by Section 113 to continue, now under color of an amended pelagics fishery plan. The council would recommend to NMFS, and NMFS would impose, a 2,000-mt limit on each of the territories, with 1,000 of that transferable to the Hawai`i vessels. These limits would be reviewed annually by the council and adjusted, if need be, by NMFS.
“Catches by Hawai`i and territory longline fisheries, when combined with U.S. longline limit for WCPO [Western and Central Pacific Ocean] bigeye tuna (3,763 mt) would have negligible impacts on bigeye tuna stocks,” the draft EA states. Even if “all of the potential 9,763 mt of bigeye tuna were caught by U.S. longline fisheries in the WCPO, projections indicate marginal impacts on WCPO bigeye tuna.”
In fact, the draft EA claims that the proposed rule would improve the conservation of bigeye tuna stocks in the region “by implementing catch limits for the territories, which under WCPFC measures do not apply.”
‘A Fictional Regime’
However, in the view of the Center for Biological Diversity, the lapse of congressional authority creates a problem for NMFS.
“The statutory authority for U.S. Participating Territories to use, assign, allocate, and manage catch limits of highly migratory fish stocks … expired December 31, 2013,” wrote Henkin in his comments on behalf of the center.
“Without Section 113,” Henkin said in a phone interview, “you’re looking at convention obligations,” referring to the U.S. commitments to uphold the WCPFC conservation measures. Those obligations, he continued, “are pretty clear about the need to ensure that the bigeye harvest goes down, not up.”
What Wespac and the HLA are doing, with NMFS’ connivance, is “creating a fictional regime transferring non-existent quotas to themselves, giving themselves an open-ended license to fish. It subverts the entire international regime. There’s no way you could argue that this is consistent with what the commission is trying to accomplish,” he said.
“Section 113 was a get-out-of-jail-free card during the time that Congress gave it to them, covering them in the domestic legal forum. But by its terms, Congress did not give them another get-out-of-jail card.”
Henkin also took issue with the notion, implicit in the proposed rule, that the U.S. territories have a separate catch limit. “I don’t see that in 2013-01,” he said, referring to the number of the conservation and management measure (CMM) that the commission adopted at its meeting last December. That measure specifies the quotas that all parties fishing for tunas and other migratory fish in the Western and Central Pacific are bound to observe for the next four years.
The commission has rules regarding attribution of catch, he said, which require attribution be made to the “flag state.” “I kind of figure domestic fishing vessels are flying the U.S. flag,” he said.
As to the claim in the draft EA that the new rule will improve conservation of bigeye by actually setting a limit on territorial catches, Henkin noted that while earlier CMMs contained a “clear allocation of 2,000 mt quotas to the territories, that’s not how 2013-01 deals with anyone flying a U.S. flag. It gets attributed to the United States unless the tuna have been caught under a charter arrangement.” The arrangements between the HLA and the territories do not meet the WCPFC’s definition of a charter, nor has the United States reported the catch taken under the territorial agreements to the commission in the way that charter catches are to be reported to the commission.
The proposed rule “doesn’t advance the conservation goals of the convention or its conservation measures,” Henkin said, “and that’s the framework under which NMFS measures need to be evaluated…. With the expiration of 113, there’s no fig leaf left.”
‘A Net Increase’
In her comments on behalf of the Pew Charitable Trusts, Amanda Nickson wrote that while the trusts support NMFS’ “providing assistance to U.S. Pacific island territories, we strongly oppose the allocation of portions of the territories’ catch to the Hawai`i-based longline fleet.”
The proposed rule “ignores scientific advice and threatens the future of the fishery by allowing the … Hawai`i-based longline fleet to catch up to an additional 3,000 metric tons of bigeye tuna,” she wrote.
Nickson noted how the negotiating stance of the United States at the most recent meeting of the WCPFC “ran counter to the latest scientific advice… [T]he proposal presented by the U.S. to WCPFC 10 simply called for an extension of the closure period for purse seine vessels fishing on [fish aggregating devices] – a measure already proven to be ineffective at lowering the catch of bigeye – and proposed only a ten percent reduction in longline catches.”
Further, “the U.S. longline fleet has increased its effort despite the continued call from scientists to reduce fishing mortality,” Nickson wrote.
“In 2005, the U.S. Hawai`i-based deep-set longline fishery set 31,913,246 hooks in the Pacific Ocean. By 2012 the effort had increased to 43,965,781 hooks, while overfishing of bigeye tuna has continued.” Projections in the draft EA suggest that if the proposal is approved, “hooks in the water would increase to approximately 46,117,532 per year, representing an increase in fishing effort of almost 44 percent within a decade despite the repeated call for catch reductions,” she noted.
Not only is the proposed rule inconsistent with international conservation measures, it also runs counter to the federal Magnuson Stevens Act, Nickson said. “National Standard 1 [in the MSA] requires that management measures prevent overfishing, and the proposed rule would increase catch of a species already subject to overfishing.”
Beyond Bigeye
Both Nickson and Henkin point out that if the rule is adopted as proposed, catches of other species, in addition to bigeye tuna, will also increase.
There would inevitably be additional catches of yellowfin and northern albacore tunas, Nickson observes. WCPFC’s conservation measure 2013-01 calls on fishing nations not to increase their longliners’ take of yellowfin, while another conservation measure, 2005-03, prohibits an increase in effort for northern Pacific albacore over and above levels reached in 2004. “Adopting the proposed rule would not only allow for continued overfishing of bigeye tuna,” Nickson writes, “but would allow the U.S. longline fleet to disregard other WCPFC conservation objectives, specifically in regard to northern albacore and yellowfin tuna.”
Billfish and both silky and oceanic whitetip sharks, all experiencing overfishing, would also likely be caught in increased numbers should the proposal be approved, Nickson added.
In his comments, Henkin refers not only to the tunas and sharks, but also several listed endangered species that would be at greater risk, including leatherback and loggerhead sea turtles, sperm whales, Main Hawaiian Islands insular false killer whales, and short-tailed albatross.
What’s more, Henkin notes that the increased fishing effort under the proposed rule would require a finding of negligible impact before it could be authorized under the Marine Mammal Protection Act, which has not occurred. To obtain this finding, he writes, fishery monitoring is required “at levels to produce statistically reliable estimates of marine mammal serious injury and mortality,” which would entail increasing observer coverage of the longline fleet to 100 percent (it is now roughly 20 percent). “This level of monitoring has already been recommended in the Fish and Wildlife Service’s 2012 biological opinion for Hawai`i-based pelagic longline fisheries, shallow-set and deep-set.” Without MMPA authorization, he warns, the increased fishing effort allowed under the proposed rule “could lead to illegal incidental take” of protected species.
‘Leading by Example’
Not surprisingly, comments from Leppo on behalf of the HLA praise the proposed rule as “faithful to, and indeed notably more stringent than, international requirements applicable to other participating countries.” Because of this, he goes on to say, it “meets and exceeds applicable standards” under the WCPFC, the Magnuson Stevens Act, and (the now-expired) Section 113 of the 2012 appropriations act. Also, he says, “it bears particular emphasis that Amendment 7 … is based upon the best available science … and because, within the limits of an international fisheries issue, the United States is upholding its end of the bargain and, indeed, leading by example, to end [bigeye tuna] overfishing” in the Western and Central Pacific Ocean.
However, Leppo adds “two cautionary notes.”
First, he states, “The procedures proposed … are cumbersome, difficult to understand, and fraught with the risk of litigation (and attendant delays and costs).” “It is not the case that more requirements, process and limits are always better,” he writes. “Imposition of an ever increasing suite of complicated substantive and procedural requirements and limits on the Hawai`i-based commercial longline fisheries renders it more complex, costly, and risky to engage in these fisheries, eroding their competitive advantage over far less responsible and less regulated foreign fisheries.”
Second, the proposed transferable limit of 1,000 mt is “substantially more stringent than the conservation measures adopted by the WCPFC and the mandate of Congress in Section 113,” he writes. If this limit were lowered or “otherwise procedurally” limited, “the result would both violate applicable law and do more harm than good for U.S. commercial fisheries, BET [bigeye tuna] … and species conservation.”
Leppo recommends that if the territorial transferable limits are to be reviewed annually, there be a “default” in the event of any hangups – and that would be “continuation of the previously existing annual limit.” “It is entirely punitive to the fisheries and … counterproductive to conservation to presumptively foreclose any transfer of BET catch by territories if, for whatever reason, the complicated annual review process proposed in the regulations is delayed or fails.” Also, rather than have annual reviews, he suggests a “multi-year limit,” which “would add important predictability.”
Indeed, the HLA challenges NMFS’ right even to propose such limits. “[R]espectfully, we disagree that NMFS has authority to adopt regulations that limit the transfer authority of a territory,” he writes, arguing that this exceeds the agency’s authority under Section 113.
(Leppo states that his comments are submitted on behalf of HLA, “a non-profit industry association,” and Quota Management Inc., which he identifies as a “wholly owned subsidiary of HLA and the contracting entity for the only agreement with a U.S. Pacific territory that would meet the requirements of, and be subject to, the pending proposals.” While records kept by the state Department of Commerce and Consumer Affairs confirm that HLA is a non-profit, QMI is not shown to be a subsidiary, nor is it a non-profit. Rather, the DCCA shows it is a domestic profit corporation, registered with the state last September. Incorporators were James Cook of Pacific Ocean Producers, Michael Goto, of the United Fishing Agency, and Khang Dang, of Dang Fishery, Inc., which owns several longline vessels.)
For Further Reading
Environment Hawai`i has covered the subject of bigeye tuna allocations extensively in past issues. Here are some of the recent articles that shed light on issues discussed in this article:
Section 113:
“Federal Law Gives Hawai`i Longliners Free Rein to Ignore International Quota,” January 2012;
WCPFC bigeye conservation measures:
“Pacific Tuna Commission Cannot Agree on Meaningful Steps to Protect Bigeye,” May 2012;
“For Another Year, Pacific Bigeye Tuna Go Without Strong International Protection,” January 2014.
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