Amendment Clarifies Intent of 2012 Conservation Act
by Ken Hinman, Wild Oceans President
To fully implement the Billfish Conservation Act of 2012, NOAA Fisheries must enact a Final Rule. Before the Final Rule there must be a Proposed Rule. And before that, an Advance Notice of Proposed Rulemaking (ANPR).
The ANPR was issued 3 1⁄2 years ago in April 2013. We’ve yet to see a Proposed Rule. NOAA published eight release dates from August 2013 to July 2016 and every one came and went; no rule. The agency offers no explanation, other than that it’s still being reviewed within the Administration.
Happily, the law is in force with respect to preventing an estimated 30,000 foreign- caught billfish a year from being sold in U.S. markets on the mainland, where commercial fishermen have been prohibited from selling marlin, sailfish or spearfish for decades.
The BCA, however, provides an exemption for the “traditional fisheries and markets” in Hawaii and Pacific island territories. The law is silent on whether or not Hawaiian-caught fish can or cannot be sold else-where in the U.S. In the ANPR, NOAA asked for comment on that question.
Wild Oceans and nearly 80 other fishing and conservation groups said emphatically: What’s caught in Hawaii should stay in Hawaii. More persuasively (you might think), all the original sponsors of the BCA – Republican and Democrat; in the Senate and the House – are on record, before the billed was passed and again after the ANPR, stating their intent that all sales on the mainland be prohibited.
The arguments are compelling, clearly em-phasizing what’s at stake:
• The U.S. would be in violation of its fair trade obligations by closing markets to foreign fishermen while arbitrarily keeping them open to some of our own. Such discrimination could open the BCA to legal challenge and jeopardize its substantial conservation benefits.
• Preferential treatment to fishermen from Hawaii would constitute discrimination under Magnuson- Stevens Act National Standard 4 by allowing residents from one state to sell fish in other states where residents are prohibited from possessing or selling their catch under the MSA.
• Enforcement would be more costly and difficult. The Congressional Bud- get O ce’s 2012 analysis of the BCA, estimating negligible costs associated with enforcement, was based on the assumption that billfish and billfish products may not be possessed or sold outside of Hawaii. The chances of prohibited billfish entering illegitimately into U.S. commerce would increase.
• Gains in billfish conservation from restricting foreign imports could be compromised if exclusive access to these markets for island fishermen results in higher marlin landings in Hawaii, where there are no limits on total catch.
Time is running out on this administration. A bipartisan group of congressmen says the buck’s been passed long enough. To avoid the uncertainty and further delays that come with a change to a new administration, they’ve introduced lame duck legislation to make the intent of the BCA unmistakable and require a Final Rule within 45 days. Something’s got to give.
(originally published in Wild Oceans Horizon No.151 2016)
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