The Impracticability Exemption For Transhipment on the High Seas / by Francisco Blaha

Not long I wrote about a paper quantifying transhipment at sea, and some the failures around their management, since while they regulated (and in cases prohibited) by RFMOs, the decision making (and reporting) stays with the flag state. In the WCPFC the key word is the “Impracticability” as an Exemption to the WCPFC’s Prohibition on Transhipment on the High Seas. And to dig deeper on this issue a paper was tabled by the RMI delegation to the present TCC here in Majuro.

 yet it mostly only two

yet it mostly only two

I don't personally know the author Chris Wold from Lewis & Clark Law School, but I know well and respect a lot two colleagues that contributes to the study: Vivian Fernandes and Wez Norris, as well as Bubba Cook from WWF that commission it, and the product is excellent. I only have some small “operational side” criticism to it, which I comment at the end of the blog.

In any case, paper is luminating and put very good facts on issues we kind of know but can be accounted know. Basically the paper show that most of the issues we have are with a handful of Distant Water Fishing Nations, and show that the usual reason to justify the “Impracticability” of not transhipping at sea don't really hold any ground.

I totally recommend you download the paper as it is public and read it. I just will quote some of the key aspects in personal opinion.

The WCPF Convention and the WCPFC have also sought to limit transhipment at sea, but they have established different transhipment rules for purse seine vessels and other fishing vessels. The WCPF Convention expressly prohibits transhipment at sea (on the high seas and in a WCPFC Member’s territorial sea and exclusive economic zone) by purse seine vessels operating within the WCPFC Convention Area.16 For longliners and other vessels, however, the WCPF Convention only requires WCPFC members and cooperating non-parties (collectively known as CCMs) to “encourage their vessels, to the extent practicable, to conduct transshipment in port. ”Through a binding conservation and management measure (CMM)—CMM 2009–06—the WCPFC prohibits longliners and other vessels from transhipping on the high seas except where CCM has determined that “it is impracticable for certain vessels . . . to operate without being able to tranship on the high seas.” 

CMM 2009–06 requires WCPFC Members to make vessel-specific determinations as to impracticability and submit a plan detailing the steps being taken to encourage transhipment in port. However, certain CCMs are not implementing either of these duties and transhipment on the high seas has become the norm rather than the exception.More than 50% of longline and other non-purse vessels are registered to tranship on the high seas and significant amounts of valuable tuna, including 36.9% of bigeye tuna, are transhipped on the highs seas. Clearly, CMM 2009–06 is not effectively reducing transhipment on the high seas.

Moreover, the evidence indicates that transhipment in port is not impracticable. Port infrastructure throughout the region is sufficient to support and supply fishing vessels.The purse seine fleet, which catches a significant amount of fish on the high seas,still manages to transship in port. At least three longline fleets—those of the EU, Japan, and the United States—fish on the high seas hundreds of nautical miles from port yet tranship all (EU and U.S.) or most (Japan) of their high seas catch in port.

A large number of high seas transhipments occur just outside the exclusive economic zones (EEZs) of CCMs, suggesting that these vessels are able to travel a much shorter distance than the EU, U.S. and Japanese longliners do to transship in port and that they are moving from waters under national jurisdiction to the high seas in order to avoid monitoring by coastal State CCMs.

In fact, over the last two years, just three CCMs—China, Chinese Taipei, and Vanuatu—accounted for 84% and 89% of those transhipments in 2015 and 2016, respectively. Moreover, costs associated with transhipment in port are insignificant in relation to the costs of operating a tuna vessel. Fuel and labor costs do not fully explain an impracticability of transhipping in port as overcapacity may play a more significant role as evidenced by the profitability of the Japanese fleet.

Given the variables affecting profitability— operational costs, subsidies, over-capitalization—assessing whether transhipment in port causes “significant economic hardship” on a vessel-by-vessel basis is challenging. Even two factors that have been proposed recently for exemptions from a high seas transhipment ban—the lack of ultralow temperature (ULT) freezer capacity at some ports and the need to get fresh fish to market— are questionable.

Thus, this paper proposes replacement of the “impracticability” test with bright line rules. It begins with a presumption against transhipment on the high seas but allows, at least in the short term, exemptions to tranship ULT frozen fish from a fishing vessel to a carrier vessel with ULT freezer capacity and for fresh fish. However, it directs the WCPFC Secretariat to study whether ports have a shortage of ULT freezer capacity and whether carrier vessels can be placed in various ports to accept ULT frozen fish just as they would on the high seas. It also directs the Secretariat to identify the circumstances under which fresh fish needs to be transhipped in order to maintain a high-quality fish product.

In addition, and in sharp contrast to the current regime, the exemptions must be approved by the WCPFC; they cannot be unilaterally established. The abject failure of CCMs to comply with the WCPFC’s information requirements, including the submission of a plan to encourage transhipment in port, indicates that unilateral decision-making should be abandoned.

Moreover, to promote the implementation of a plan to encourage transhipment in port, exemptions may not be granted for more than three years. While a CCM may apply for a new exemption for a vessel at the end of the three years, presumably the WCPFC will want evidence that the CCM is implementing its plan before granting the exemption. 

Transhipment in Practice

Transhipment practice within the WCPFC varies by region and by CCM. Some CCMs, for example, prohibit transhipment at sea by all vessels in all circumstances, including the Parties to the Nauru Agreement (PNA).

Other CCMs, however, are availing themselves of the exemption for transhipping at sea at a rate that indicates they are not making vessel-specific impracticability determinations. In 2016, for example, CCMs authorized 2,223 of 4,468 (49.75%) WCPFC-registered vessels to tranship on the high seas, including 58.2% of all longline vessels, 88.2% of all pole-and-line vessels, and 42.8% of carrier and bunker vessels. The percentage of vessels authorized to tranship on the high seas rose to 52% (2,431 out of 4,658 vessels) in 2017, with the majority of these vessels being longline vessels (1,831 vessels).

The number of reported high seas transhipment events has fluctuated from year to year between 2011 to 2016, with a high of 948 in 2016 and a low of 525 in 2012.The number of high seas transhipments, however, appears to be trending upwards. See Table 1 above. One possible reason is the move of some fleets from fishing in EEZs to the high seas due to increasing costs of fishing in the EEZs of some Pacific Island States.

All reported high seas transhipments in 2015 and 2016 were conducted by fishing vessels registered to just 5 CCMs—China, Korea, Chinese Taipei, Vanuatu, and Japan—but the vessels of China, Chinese Taipei, and Vanuatu accounted for 84% and 89% of those transhipments in 2015 and 2016, respectively. See Table 2 above. As 22 of the 24 registered longline vessels flagged by Vanuatu are owned by individuals or companies in China and Chinese Taipei,it may be possible to attribute an even greater portion of high seas transhipments to those two CCMs.

High seas transhipments in 2016 accounted for a large percentage of the catches for certain species, including 25.3% of albacore, 36.9% of bigeye tuna, and 10% of yellowfin tuna. The proportion of high seas catch relative to catch limits appears to be even greater when the small number of vessels transhipping on the high seas is considered: just 352 fishing vessels of the more than 3,100 non-purse seine fishing vessels registered to fish in the WCPFC Convention Area accounted for the catch transhipped on the high seas in 2016.

Yet, according to the annual reports of CCMs, some longline fleets rarely, if ever, transship on the high seas. For example, 23 CCMs reported that vessels they flag fish on the high seas, but just 7 of these CCMs (including carrier vessels from Liberia and Panama) reported that vessels they flag tranship on the high seas. The 157 U.S. and 446 Japanese longline vessels rarely tranship on the high seas. In fact, no U.S. vessels transhipped on the high seas in 2014, 2015, and 2016; Japanese vessels reported just 31, 29, and 28 high seas transhipments in those years.

Significantly, these vessels typically fish far from the ports in which they land their fish. U.S. tuna longline vessels fish up to 1,000 nautical miles from Honolulu, although most trips are within 500 nautical miles, yet land their catch in Honolulu.Japanese longline vessels focus their fishing in tropical waters easily more than 1,000 nautical miles from Japan,yet land their catch back in Japan.

Conclusion

This paper proposes replacement of the “impracticability” test with a presumption against transhipment on the high seas. It allows, however, time-limited exemptions to ensure transhipment of ULT frozen fish from a fishing vessel to a carrier vessel and for fresh fish.

However, it directs the Secretariat to study the circumstances under which these exemptions are needed; the exemptions expire unless these studies conclude that the exemptions are necessary. In addition, and in sharp contrast to the current regime, the exemptions must be approved by the WCPFC; they cannot be unilaterally established.

The process that applies to exemptions for purse seine vessels would be applied to all other vessels. Moreover, to allow the WCPFC to review implementation of such plans to encourage transhipment in port, exemptions may not be granted for more than three years, although CCMs may apply for a new exemption at the end of the three years. Only through such a process can the WCPFC help minimize IUU fishing, prevent human rights abuses, and reduce opportunities for human trafficking and smuggling of guns, drugs, and wildlife. At the same time, it will help Pacific Island States develop their ports and economies.

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If I was to criticize something is only from the operational side. I don't think enough differentiations and alignment was made in between transshipping defined as “vessel to vessel” and “landing and containerization”, this latest practice while sometimes referred as transshipment, but is not. Furthermore, as soon as the fish leaves the boat and is landed (even if in a custom bonded wharf) all sorts of market access and trade implications arise.

Furthermore the excuse that ports don't have ULT (Ultra Low Temp -50C for sashimi) capacity should affect transshipment, since if the fish is being “transhipped”, then by definition is not being landed, so what does the port as to do with it… if anything (from my experience) if you will to transship ULT fih in between vessels, is much easier (and more importantly safer) to do it in the protected water of a port, rather in the high seas where you are way more exposed to weather events and rain.