Getting Past Customs

Exemption for Hawaiian Traditions Creates Legal, Trade Hurdles for BCA

by Ken Hinman, Wild Oceans President

Since passage of The Billfish Conservation Act of 2012, foreign imports of marlin and other billfish, estimated at up to 30,000 fish a year pre-BCA, have come to a halt, making it one more triumph in our ongoing efforts to protect these marvelous fish. One unresolved issue remains, however, affecting implementation of the law.

Although top officials at NOAA Fisheries originally told us the law’s exemption for Hawaiian-caught billfish would be enforced as sales- for-island-markets-only until final regulations are promulgated, they changed their minds. In 2013 the agency put out an Advance Notice of Proposed Rulemaking (ANPR), asking the public for input on what restrictions, if any, should be placed on transportation and sale of fish caught under the exemption, which covers the State of Hawaii and Pacific island territories including Guam, Samoa and the Marianas. A Proposed Rule will be published in the Federal Register, with opportunity for public comment, sometime later this year, according to NOAA.

Struggles with the “Hawaii exemption” are holding up the final regs. The issue is, can billfish caught and landed by Pacific islanders be sold on the U.S. mainland, where markets are otherwise closed to everyone else? A NOAA spokesman recently described the challenge as crafting regulations which “reflect statutory language and Congressional intent, improve the public’s understanding of the BCA’s provisions, facilitate enforcement, and ensure consistent implementation of the BCA nationally.”

In 2012, the bill’s sponsors stated, on the record, their intent to exempt billfish from the Act’s general prohibition on sales “as long as the billfish were only sold in Hawaii or a Pacific Insular area,” and the public overwhelmingly supports that intent. Unfortunately, the language itself is silent on the matter, leaving room to argue otherwise on a plain reading of the statute. On the other hand, allowing mainland sales from a small subset of U.S. fisheries would not only create enforcement problems, it would likely expose the Administration to serious legal and trade ramifications by giving exclusive access for Hawaii fishermen to a mainland market closed to all other fishermen, domestic and foreign. Moreover, an unrestricted flow of Hawaiian fish into the mainland market to fill the void left by banned imports would undercut the law’s conservation benefits.

“When it comes to billfish, what happens in Hawaii should stay in Hawaii.”

Of the 291 organizations and individuals who filed comments on the 2013 ANPR, only one endorsed mainland sales; the Western Pacific Fishery Management Council, based in Honolulu. WesPac, as it is known, devotes a single sentence to the matter: “(T)he small amount of billfish sold in the continental US markets from US vessels operating out of Hawaii and US Pacific Island Territories is important to maintain as it supports intrastate commerce in highly monitored, US-produced seafood products.” The bulk of the 3-page letter is a defense of Hawaii’s commercial uses of billfish coupled with a criticism of the non-exploitative philosophy that prevails on the mainland.

Six of the 7 other regional councils (5 on the Atlantic coast along with the Pacific Council) long ago reserved billfish for recreational use, citing higher economic value from a fishery that is almost entirely catch-and- release. The BCA reinforces the decommercialization of billfish on the mainland with a ban on fish coming in from outside, while bending over backwards to accommodate the Western Pacific’s traditional fisheries and local customs and deferring to WesPac’s regional management authority.

Although the council says the islands’ billfish catch is “highly monitored,” that’s clearly not the case and part of the problem. During Congressional deliberations on the BCA, no one, not WesPac, not NOAA Fisheries, could provide data on how much billfish is being shipped to mainland retailers and restaurants. Is it a “small amount” or something significant, and what’s the trend?

We do have good data on what the U.S. longline fleet based out of Hawaii is landing, and that’s a big reason the first version of the BCA (2010) offered no exceptions to its national ban on billfish sales. In 2009, 20,807 billfish were reported landed in Hawaii by commercial longliners: 4,241 blue marlin; 8,722 shortbill spearfish; and 7,844 striped marlin, mostly juveniles. It’s an unconstrained bycatch fishery; the longliners hook billfish chasing other, more valuable species.

So, the law already makes huge concessions to the Hawaiian fisheries, the type of compromise necessary to make national legislation happen. But the BCA’s authors and supporters never intended to reserve the mainland market for Hawaii’s commercial fishermen, thus compromising the BCA and its badly needed conservation benefits.

All the Billfish Conservation Act asks of Hawaii (and neighboring islanders) is that it take a cue from the successful Las Vegas marketing campaign. When it comes to selling billfish, what happens in Hawaii should stay in Hawaii.

(originally published in Wild Oceans Horizon No.146 2015)

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