Federal Law Gives Hawai`i Longliners Free Rein to Ignore International Quota

posted in: Fisheries, January 2012, Marine | 0

It was the closure that didn’t happen.

On November 18, the Federal Register published a notice that the Hawai`i longline tuna fishery in the Western Pacific (west of 150˚ W longitude) would be closed from November 27 until the end of 2011. The closure, the National Marine Fisheries Service announced, was the result of the fishery being expected to reach on that day its 2011 quota of 3,763 metric tons of bigeye tuna, or ahi, established under a conservation and management measure adopted by the Western and Central Pacific Fisheries Commission in 2008.

The very same day of the announcement, however, President Obama signed into law an appropriations bill for the Departments of Agriculture, Commerce, and Justice. Tucked into the fine print, toward the end of the Commerce part of the bill (Section 113), was language that did away with the 2011 closure – and, for good measure, ended the prospect of any similar closure this year, should the WCPFC quota for the Hawai`i longline fleet be approached again.

The specific mechanism for doing this was to shift the allocation of the catch of bigeye so that it would not be logged as catch by the Hawai`i longliners. Instead, under certain conditions, the catch could be counted as part of the haul of “U.S. Participating Territories” (American Samoa, Guam, or the Commonwealth of the Northern Mariana Islands) — never mind the fact that, under the new law, the boats landing the fish won’t have to go anywhere near these islands.

Under the WCPFC management rule, the territories have no limit on the amount of bigeye that can be caught, so long as the catch is taken by vessels that participate in a scheme to develop the territories’ domestic fisheries. The new law allows American Samoa, Guam, or CNMI to enter into agreements with Hawai`i-based boats stating that the vessels “are integral to” their domestic fishery, “provided that such arrangements shall impose no requirements regarding where such vessels must fish or land their catch.”

There’s one other requirement, too: that any vessels participating in such an arrangement have to make deposits into the Western Pacific Sustainable Fisheries Fund in support of the territory’s Marine Conservation Plan. That fund is managed by the Western Pacific Fishery Management Council (Wespac), whose executive director is Kitty Simonds. According to the Senate Appropriations Committee report on the bill, the language setting up this exemption from WCPFC quotas for the Hawai`i fleet merely “clarifies management of highly migratory fish stocks.”

Something else occurred on November 18, along with signing of the law and publication of the closure notice: the Hawai`i Longline Association, which represents most of the longline vessels based in Honolulu, presented to NMFS’ Pacific Islands Regional Office in Honolulu a signed an agreement with the government of American Samoa, effectively allowing the fleet unlimited catches of bigeye during the peak holiday season.

Reassessment?

The Federal Register notice announcing the closure received virtually no coverage in the daily media. Neither did the passage of the appropriations bill for Agriculture, Commerce, and Justice.

However, on December 2 the Honolulu Star-Advertiser featured a story on the front page of its local news section, headlined “Ban canceled on longline fishing for bigeye tuna.” According to the article, NMFS “decided against imposing a ban on Hawai`i longline fishing for bigeye tuna for this year, after reassessing the catch amounts.”

Reassessing catch amounts had nothing to do with suspension of the announced closure, however. According to Michael Tosatto, administrator of PIRO, since the catch logged from November 18 till the year’s end is attributed to American Samoa, technically, the quota set for Hawai`i boats could not be exceeded. As of mid-November, the estimated bigeye catch stood at 96 percent of the Hawai`i quota.

According to a notice rescinding the closure that appeared in the December 1 Federal Register, “as of the implementation date of the Act (November 18, 2011), the Hawai`i Longline Association … had entered into an arrangement with the Territory of American Samoa. Pursuant to the Act, on November 18, 2011, NMFS began assigning catches by U.S. longline vessels fishing in the western and central Pacific to American Samoa. As a result, NMFS no longer expects that the fishery will reach the 2011 catch limit.”

The agreement, obtained by Environment Hawai`i, was signed well before the appropriations act passed Congress. There is no date given for the signatures of either Sean Martin, president of HLA (and member of Wespac), or Ray Tulafono, director of the America Samoa Department of Marine and Wildlife Resources. The agreement itself, however, says that it took effect November 1, more than two weeks before the appropriations bill became law. The agreement lasts through December 31 2012.

In return for selling its bigeye allocation to HLA, the government of American Samoa is having HLA pay a total of $250,000 into the sustainable fisheries fund.

International Injury

For years, fishery managers have been concerned over the health of bigeye tuna stocks in the Pacific Ocean, and in response, the Western and Central Pacific Fisheries Commission was established to try to impose an equitable international management regime for catches of bigeye, other tuna species, and other pelagic fish.

The 2008 conservation and management measure was the commission’s first effort to ratchet down catches of bigeye, in hopes that the stocks would rebuild. As Environment Hawai`i has reported in the past, the Hawai`i longline fleet avoided the harsh cuts that were imposed on other fisheries, with its quota reflecting a 10 percent reduction over average catches earlier in the decade, where other fisheries were subject to 30 percent curbs.

What the impact of the new law will be on Pacific bigeye stocks is not clear, but at a minimum, it probably will not help bolster the U.S. delegation’s efforts to get other fishing nations to accept further cuts in their quotas. Tosatto said that one of the issues the U.S. delegation wants to raise is how to tighten up WCPFC language on what constitutes charters that qualify as “integral” to the responsible development of island states’ fisheries. It is possible, he said, that the new law could encourage efforts by other countries to “add rigor to the charter scheme – could spur people into tightening things up.” Or, he added, “it could backfire.”

Further complicating matters is the fact that CMM 2008-01 expired on December 31. At a meeting scheduled for early December, the commission was expected to approve a new management measure. That meeting was cancelled, however, after the main power plant in Palau (where it was to be held) was knocked out in November.

The chairman of WCPFC is Charles Karnella, international fisheries coordinator at NMFS’ Honolulu office. When asked what would happen on January 1, Karnella replied, “Good question.”

“We’re trying to figure out how to do something intercessionally,” he said, adding that he had been in touch with representatives of other commission member states.

As of mid-December, no new time or place for the commission’s next meeting had been set.

Paving the Way

The Hawai`i longline fleet has chafed under the WCPFC quotas ever since they were imposed. In 2009, the longliners were shut down the last two days of the year because of the quota being met. In 2010, the closure began on November 21, meaning the fleet had to fish in the Eastern Pacific to meet the high holiday demand for ahi.

In response to NMFS’ environmental assessment on implementation of CMM 2008-01, the longliners asked – and received – permission to have the catch of vessels holding dual permits from Hawai`i and American Samoa have their post-quota catches included as part of the American Samoa catch, so long as the fish were taken in waters outside the 200-mile exclusive economic zone surrounding Hawai`i.

That, however, left most of the 120-plus longline vessels out of luck, since only about a dozen hold permits for both jurisdictions.

As early as 2009, the HLA tried to exploit the special treatment given to “small island developing state members and participating territories.” The 2,000-MT quota was given them, no questions asked – and they have no quota at all if they are “undertaking responsible development of their domestic fisheries.” That year, the first one in which the longline fleet was operating under WCPFC quotas, the HLA struck an agreement with American Samoa assigning to the Hawai`i fleet 1,500 metric tons from the American Samoa allocation. The fish could be caught anywhere and landed anywhere. For this, the HLA proposed a payment of $225,000. In rules intended to make U.S. fishing regulations consistent with the WCPFC management measure, however, NMFS required that any charter agreements that the U.S. territories might make would only qualify as being “integral” to responsible fishery development if the fish taken by the charter fleet were landed in the territory. (For background, see the September 2009 cover story in Environment Hawai`i.)

In 2010, the Senate Appropriations Committee, chaired by Daniel Inouye, inserted the language that would legitimize the HLA agreement into the Commerce appropriations bill, but it did not make it off the Senate floor. In 2011, the language was included in the Senate-passed bill. When it made it out of the House as well – around November 1, according to Tosatto – the HLA “re-engaged with American Samoa,” signing the new agreement.

Quota Questions

The HLA-American Samoa agreement states that the territory “assigns to the [HLA] Vessels [the Territory’s unused bigeye tuna Quota for 2011 and 2012,” while also stating that use of the term “quota” is “not intended to imply that the applicable [conservation and management measures] establish a specific limit for bigeye tuna catch that is applicable to the Territory. Territory’s quota may be without limitation.”

Will the Hawai`i fleet even be catching fish against the Hawai`i quota in 2012, then? Tosatto was asked. “You hit on a key issue,” he said. “We’re still evaluating the language in the agreement.”

If NMFS determines that American Samoa has a quota of 2,000 metric tons of bigeye (in other words, the HLA agreement is not “integral” to development of its fishery), then the entire American Samoa quota could be hit by May, given the usual catch of the Honolulu fleet, Tosatto said. He added that this could mean the American Samoa fishermen, who usually catch no more than 300 or 350 MT of bigeye annually, would be shut down for the remainder of the year. But, he added, “I don’t believe it was the intent of American Samoa to give all 2,000 tons” to the HLA.

***

Council Debates NMFS Projections of Longline Impact on Loggerheads

By January 27, the National Marine Fisheries Service must release a new biological opinion (BiOp) on the impact of the Hawai`i shallow-set longline fleet on the North Pacific populations of leatherback and loggerhead sea turtles. Leatherbacks have been on the endangered species list for years, while loggerheads were only recently added to the list. Specifically, the service is evaluating the impact of 5,500 sets/year, the estimated maximum number of sets the Hawai`i fleet would likely make without any effort limit.

Preliminary NMFS analyses assuming the maximum effort level determined that the fishery would likely take (harass, injure or kill) one humpback whale and 35 loggerheads, 23 leatherbacks, two olive ridleys, and four green sea turtles.

Of the 35 loggerheads taken, about seven turtles (18.8 percent) would likely die, Patrick Opay, NMFS PIRO endangered species branch chief, told Wespac at its October meeting. Of the 23 leatherbacks taken, about five turtles (22.4 percent) are expected to die.

The take and mortality rates, based on hooking data since 2004, differ from estimates NMFS scientists provided to the council in 2008, when the council’s recommendation to lift effort limits on the longline swordfish fleet was still being formulated. At that time, the service estimated that the fleet would take 46 loggerhead and 19 leatherback turtles, and kill three adult females of each species.

Last summer, the U.S. District Court approved a settlement between NMFS and environmental groups regarding the service’s 2009 decision to increase the cap on loggerhead interactions from 17 to 46. Under the settlement, the fleet is limited to 17 loggerhead takes until a new BiOP comes out. (The cap on leatherbacks was unchanged, at 16. On November 18, the swordfish fleet was shut down for the remainder of the year after NMFS announced the 16th leatherback interaction had been recorded.)

At the council meeting, chair Manny Duenas said he felt the mortality estimates were too high, given that the fleet has had only one observed loggerhead death since 2004.

Opay said his agency had based its estimates of post-hooking mortality on a 2006 NMFS technical memo and that “there’s always gonna be discussion about whether the rate is too high or too low.”

In a November webinar, NMFS and council staff revisited the post-hooking mortality issue, since, as the council’s Eric Kingma pointed out during the October meeting, more recent peer-reviewed research suggests a different post-hooking mortality rate than the estimate in the 2006 memo. How or whether the information presented during the webinar is included in the BiOp remains to be seen.

At the council meeting, NMFS Pacific Islands Regional Office administrator Mike Tosatto said that the service is not constrained to using agency-endorsed memos. “Leeway is there for us,” he said. Responding to council member and Hawai`i Longline Association president Sean Martin’s statement that the settlement has led the industry to question NMFS’ objectivity, Tosatto assured him, “We’ll be really objective.”

‘Conservation Banking’

While discussing the kinds of information NMFS planned to consider in its analyses, Duenas asked whether the council-funded effort to boost turtle nesting in Japan and Mexico would be included. Tosatto responded that “conservation banking,” as it is called, may someday be included in BiOps, but “the science just isn’t there yet.” He added that data on transfer effects is at a similar stage. Both may be included once things are ready “to move from words to numbers,” he said.

If NMFS ever does include conservation banking in its analysis of impacts to leatherback and loggerhead populations, it may be too late. The council’s Asuka Ishizaki reported that funding for the council’s turtle programs has been reduced by more than 80 percent, allowing for only “bare bones” nesting beach projects for the two species.

Council executive director Kitty Simonds encouraged non-governmental organizations to step in.

“[The Nature Conservancy] may be more involved. They’re the ones who have the money,” she said.

Volume 22, Number 7 — January 2012

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