Overview of the Petition to ban the take of Pacific bluefin tuna within the US EEZ

This document presents a review of the Petition to ban the take of Pacific bluefin tuna submitted by the Center for Biological Diversity.  In this document, we do not address the merits of the claims brought in the Petition, nor do we offer an opinion on the subject matter of the Petition.  Should you have any questions, comments and/or concerns – we would welcome an opportunity to discuss.  Please contact us via email at Mike@wecofm.com.

Overview of the Petition

NOAA/NMFS recently sought public comment on the Center for Biological Diversity’s (CBD) Petition[1] to NMFS to amend the Pacific Fishery Management Council’s (“PFMC”) Highly Migratory Species Fishery Management Plan (“HMS-FMP”).  The Petition seeks to ban the take of Pacific bluefin tuna in the US Exclusive Economic Zone (3 – 200 nm offshore) or, in the alternative, impose annual catch limits and a minimum size requirement to protect one and two year old fish.  It also asks NMFS to establish specific values for reference points for Pacific bluefin tuna to guide science-based management.  Additionally, the petition requests the US to move other nations targeting bluefin towards: (1) a high seas moratorium on all fishing, (2) a Pacific-wide minimum size for bluefin tuna and (3) a reduction in bluefin tuna quota for all IATTC[2] member countries in order to meet established rebuilding goals.

CBD proffered this rulemaking Petition under provisions of the Administrative Procedures Act relying on Agency inaction after a statutory duty arose to take action.  This will be more fully developed below.  For consistency purposes, we will follow the layout of the Petition.

Background:

Pacific Bluefin Tuna

The geographic range of the Pacific bluefin is primarily the North Pacific Ocean.  Spawning grounds are located in the Western Pacific (between Japan and the Philippines).  Bluefin encountered off the US West Coast are predominately juveniles which are thought to migrate here to feed.  It is generally accepted that these fish reside in the area for up to three years, before they return to the Western Pacific and the spawning grounds.  If, as predicted, sea temperatures rise – models show larval survival could decline by upwards of 36%.

Pacific bluefin reach sexual maturity at roughly 5 years of age and are thought to live up to 25 years.  Species that take several years to reach sexual maturity, like the Pacific bluefin tuna, become particularly vulnerable as many fish are removed from the population before they have an opportunity to reproduce. Ninety percent of eastern Pacific landings represent fish from 1 to 3 years of age.   Like most fish species, a larger (older) specimen will produce more eggs and provide a greater contribution to overall species productivity relative to a fish which just began reproducing.

Pacific bluefin migrate to the coast of Mexico and the US, posing a challenge to management and recovery.  A portion of the population spends from one to four years in the eastern Pacific Ocean. Because of the repeating and predictable nature of juvenile bluefin tuna migrations to the eastern Pacific, bluefin tuna may be more susceptible and vulnerable to fishing pressure than anticipated. The 2012 stock assessment assumes the stock is fully spatially mixed and cannot account for regional depletion in the eastern Pacific Ocean.

Failing to account for the impacts of excessive take of juvenile bluefin in the eastern Pacific could have undesirable consequences.  Recent studies have shown that a majority of the fish which migrate to the eastern Pacific, do so at ages 1 or 2.  This allowed researchers to conclude most of the larger fish encountered in the eastern Pacific have been here for more than a year.  Thus protecting small fish in the eastern Pacific may be the most effective way to increase availability of larger fish in the eastern Pacific. High fishing mortality[3] in the eastern Pacific Ocean also prevents an unknown proportion from spawning, reducing the recovery potential for Pacific bluefin tuna.

The Petition then attempts to link high fishing mortality to changing migration patterns.  Before the mid-1980s the average length of bluefin taken in the eastern Pacific commercial and sport fisheries was 75 cm (1 year old fish).  In the late 1990s and 2000s the average length was 85 cm (2 year old fish).  In the late 1980s, some very large fish – between 150 and 200 cm – were caught.  This time period also coincided with some of the lowest fishing mortality in the eastern Pacific because of the decline in the US purse seine fishery.  Thus, fishing mortality likely has contributed to both the decline in bluefin tuna’s range in the eastern Pacific and truncation of size structure.

Status of the Pacific bluefin tuna:

The most recent stock assessment estimates a decline in the species population of 96.4% of unfished levels.  The species is overfished and is subject to overfishing, as it has been for the majority of years since 1952.  Scientists estimate unfished adult Pacific bluefin tuna biomass to be about 633,468 metric tons and the current adult biomass to be 22,606 mt, far below the biomass that could produce maximum sustainable yield (124,498 mt).  High commercial value has led to consistent exploitation above sustainable levels.

After a brief discussion on the Magnuson-Stevens Act, National Standard 1 and the HMS-FMP (which will all be discussed more thoroughly in future documents of this series) the Petition states the extremely poor status of Pacific bluefin tuna allowed scientists to conclude fishing mortality to be above all target and limit biological reference points commonly used by fisheries managers.

Because bluefin tuna abundance is at an all-time low, the potential for recovery is uncertain. The 2012 stock assessment assumes stock sizes have not reached a level at which recruitment is impaired, meaning that given the right conditions (lower fishing mortality and a favorable environment), bluefin tuna could recover. On the other hand, the benchmarks of overfished and undergoing overfishing, by definition, mean that recruitment might be impaired, presenting an internal inconsistency in the assessment.  In the past the stock size has also been very low and the fishing mortality very high (1970s-80s), and the population still responded to fishing mortality reductions, which offers some hope for recovery.

Pacific bluefin tuna fisheries:

Fisheries targeting Pacific bluefin tuna do so using the following methods:  purse seine, pole and line, and longline. Landings occur year-round, with most of the catch from the western Pacific taken during May-September and most from the eastern Pacific taken during May-October.  The recent trend in the global bluefin fisheries has transitioned to purse seine fleets, which supply live fish for ranching operations to meet sashimi market demand. With sashimi prices higher than that of canned tuna, the globalization of this market has encouraged overexploitation.  In the late 1990s, the eastern Pacific fisheries followed market trends by beginning to catch live fish for ranching operations. This resurgence peaked in 2007, with landings reaching 10,000 metric tons.

Japan’s catch of young of year bluefin tuna in the western Pacific comprises most of the landings, followed by the Mexican fleet. The increase in Mexico’s catch in the past fifteen years is consistent with increasing fishing pressure on eastern Pacific bluefin tuna age 1.

Average annual US commercial Pacific bluefin tuna catch from 2007 to 2011 represents only two percent of the average annual landings for all fleets fishing in the eastern Pacific Ocean during that period.  In the last decade, recreational catch has become more important (note that U.S. charter recreational vessels are permitted to fish in Mexican waters while commercial vessels are not).  For the last 10 years for which the information is available US commercial and recreational take is as follows:

 

Year Commercial (mt) Recreational (mt)
2001 338 356
2002 61 654
2003 40 394
2004 11 49
2005 206 79
2006 2 96
2007 88 28
2008 103 93
2009 566
2010 1 122
2011 117 456
Totals 1533 2327

Magnuson-Steven Act

The Petition highlights certain provisions of the Magnuson-Stevens Act (“MSA”).

16 U.S.C. § 1801(a)(6) – why and when conservation measures are required.

16 U.S.C. § 1801(a)(4) – ineffectiveness of international fishery agreements.

16 U.S.C. § 1801(b)(1) – responsibility of each regional Council to develop FMPs.

16 U.S.C. § 1853(a)(1)(A) – required content of a FMP.

16 U.S.C. § 185l(a)(1) – National Standard 1 dual objectives of preventing overfishing while achieving optimum yield.

50 C.F.R. § 600.310(l) – Interplay between National Standards 2 through 10 and National Standard 1.

16 U.S.C. § 1854(e) – Secretary’s power to regulate overfished fisheries.

16 U.S.C. § 1854(e)(2) – Once a fishery is determined overfished, what measures are required.

16 U.S.C. § 1854(e)(3) – responsibilities of managing Council once notified that measures are required.

16 U.S.C. § 1854 – Council action must end overfishing and rebuild affected stocks.

16 U.S.C. § 1854(e)(5) – repercussions if managing Council fails to take required action.

In 2007, the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act added a section addressing fish stocks overfished “due to excessive international fishing pressure[4].”  After the Secretary determines both the species: (A) is being overfished “due to excessive international fishing pressure,” and (B) no management measures exist to end overfishing under an international agreement to which the United States is a party; the following actions are required:

(1) the Secretary, cooperating with the Secretary of State, [shall] immediately take appropriate action at the international level to end the overfishing; and

(2) within 1 year of the Secretary’s determination, the appropriate Council, or Secretary, for fisheries under section 1852(a)(3) of this title shall—

(A) develop recommendations for domestic regulations to address the relative impact of fishing vessels of the United States on the stock and, if developed by a Council, the Council shall submit such recommendations to the Secretary; and

(B) develop and submit recommendations to the Secretary of State, and to the Congress, for international actions that will end overfishing in the fishery and rebuild the affected stocks, taking into account the relative impact of vessels of other nations and vessels of the United States on the relevant stock.” 16 U.S.C. § 1854(i). ** Note – National Standard 1 guidelines provide that the “relative impact” of fishing vessels of the United States may include consideration of factors such as (1) domestic and international management measures already in place, (2) management history of a given nation, (3) estimates of a nation’s landings or catch (including bycatch) in a given fishery, and (4) estimates of a nation’s mortality contributions in a given fishery. 50 C.F.R. § 600.310(k)(3).

Additionally, all stocks subject to management under an international agreement must have reference points (for example status determination criteria[5] and maximum sustainable yield) in each FMP.  These must be based upon the best scientific information available – see National Standard 2.

The HMS FMP was adopted in 2004 and most recently amended in 2011.  The FMP prohibits retention of some species (certain species of shark) and allows take of “prohibited species[6]” under certain conditions (Pacific Halibut and salmons).  The list of prohibited species was created to protect rare animals, like the low productivity sharks, and prevent Pacific halibut and salmon from becoming targets of fisheries covered by the FMP that have incidental catches of these species. (FMP 2011; 50 C.F.R. § 660.711(a).)

Tuna Conventions Act of 1950

The Tunas Conventions Act of 1950, 16 U.S.C. §§ 951-62, requires the Secretary of Commerce to promulgate regulations to carry out recommendations of the IATTC upon approval by both the Secretary of State and the Secretary of Commerce. 16 U.S.C. § 955(c).

Regulatory History

NMFS has determined both that the Pacific bluefin tuna is undergoing overfishing and is overfished.  See Fisheries of the Pacific Region; Western Pacific Region, Notification of determination of overfishing or an overfished condition,76 Fed. Reg. 28422, 28422 (Apr. 7, 2011).  The PFMC and the Western Pacific Fishery Management Council (“WPFMC”) responded jointly to NMFS’s 2011 section 304(i) determination in a March 26, 2012, letter (PFMC 2012). The Councils did not recommend new domestic management measures to address relative impact of U.S. fishing vessels on the Pacific bluefin tuna stock and instead found current regulations “adequately address the very low impact of U.S. fisheries on the stock of Pacific bluefin tuna”.

On April 8, 2013, NMFS notified the PFMC that even though the HMS-FMP does not identify biological reference points, NMFS had “determined that Pacific bluefin tuna (Thunnus orientalis) continues to be subject to overfishing and was now overfished.” (McInnis 2013; see also International Fisheries; Pacific Tuna Fisheries; Fishing Restrictions in the Eastern Pacific Ocean, 78 Fed. Reg. 33240, 33241 (Apr. 16, 2013) (“Based on a 2013 stock assessment, NMFS determined Pacific bluefin tuna was not only experiencing overfishing but was also overfished.”)  The PFMC directed its Executive Director to respond with a letter recommending no new domestic management measures and recommending the U.S. government advocate for a higher level of protection in international fisheries (PFMC 2013a; see also PFMC 2014 (transmitting the final response)). The Council decided to evaluate current catch limits in West Coast recreational bluefin tuna fisheries as part of the biennial process beginning in June 2014 (PFMC 2013a; see also PFMC 2014).

Commercial Catch Limits

On June 4, 2013, NMFS implemented IATTC recommendations capping commercial bluefin tuna annual catch for 2012 and 2013 at 500 mt – an amount above any U.S. catches in the past decade. 78 Fed. Reg. 33240 (codified at 50 C.F.R. § 300.24(u) and § 300.25(h)). NMFS promulgated the catch limits solely under its Tuna Convention Act authority to implement IATTC recommendation, and therefore considered “[t]his action . . . not subject to the Magnuson-Stevens Act.”  This commercial catch limit was extended for the 2014 season.

In 2008 – years before the IATTC recommended catch limits – the California Legislature requested Pacific bluefin tuna catch limits because of concern over the status of the stock (S.C.R. 85 (2008)). California Senators Kuehl, Migden, and Wiggins introduced Senate Concurrent Resolution 85 to request the assistance of state, federal, and international management agencies to achieve, among other things, “the imposition and enforcement of catch limits for Pacific bluefin tuna in the United States Exclusive Economic Zone” (id.) The findings of the resolution include concerns over the potential collapse of Pacific bluefin tuna, associated economic losses, ecosystem effects of fewer Pacific bluefin tuna, and the failure of national and international regulatory structure to manage and protect Pacific bluefin tuna. The California Assembly and Senate adopted the resolution in July and August 2008, respectively. Many agencies and non-governmental organizations supported the bill, including NMFS, the Monterey Bay Aquarium, and several environmental organizations, but neither the PFMC nor NMFS took action to set catch limits in response.

Harvest for the aquaculture industry is an ever-present threat to Pacific bluefin tuna.  Between 2002 and 2008, NMFS – almost yearly – published notices and requests for comments on applications for Mexican vessels to receive transfers of live tuna from U.S. purse seiners for the purpose of transporting the tuna alive to an aquaculture facility located in Baja.  This activity has yet to have been approved.

NMFS also has studied ranching bluefin tuna in U.S. waters. Hannesson and Herrick in 2013, conducted an economic study of potential species suitable for California aquaculture and concluded that “California halibut and bluefin tuna for the Japanese market appear expensive enough to unambiguously justify fish farming.” The high prices paid for sushi-grade bluefin tuna drive ideas to develop the bluefin tuna industry despite the decimated population.

Recreational Catch Limits

On October 15, 2007, NMFS established a recreational daily bag limit of 10 bluefin tuna in federal waters off of California. Fisheries off West Coast States; Highly Migratory Species Fisheries, 72 Fed. Reg. 58258 (Oct. 15, 2007).  This bag limit is so high that it will not limit fishing for Pacific bluefin tuna. See 72 Fed. Reg. 35213, 35213 (June 27, 2007) (“from 1997 through 2005 . . . approximately 98 percent of sampled catches that contained albacore tuna landed less than 10 total fish per day”).  During the rulemaking process, NMFS rejected comments requesting a lower bag limit and application to federal waters off all three west coast states. 72 Fed. Reg. at 58259. At that time NMFS was operating under the conclusion that bluefin tuna populations in the North Pacific Ocean were not experiencing overfishing or overfished, but NMFS “will, in conjunction with the Pacific Council, take necessary steps in the future to implement appropriate conservation measures if warranted, including the potential for additional regulations to address both commercial and recreational fisheries impacts.”

NMFS determined that the federal bag limit – applicable only to waters off California – is consistent with state regulations (72 Fed. Reg. at 58258; 16 U.S.C. 1856). All three west coast states have recreational bag limits for pelagic species on a per angler basis:

– Washington: 2 bluefin per day. W.A.C. 220-56-240.

– Oregon: aggregate of 25 offshore pelagic species per day. O.A.R. 635-011-0100 (incorporating 2014 Oregon Sport Fishing Regulations).

– California: 10 bluefin per day. 14 C.C.R. § 28.38(b).

In practice, these bag limits do little to restrict the catch of bluefin tuna. In California – where an angler is most likely to catch bluefin tuna – state regulations allow, by special permit, retention of up to three daily bag limits for a trip occurring over multiple consecutive days. 14 C.C.R. § 27.15. In other words, for a multi-day trip with a special permit an angler could catch 30 bluefin tuna. In addition, two or more anglers may continue to fish until “boat limits” are reached. A boat limit is “equal to the number of passengers aboard . . . authorized to sport fish in ocean waters off California . . .  multiplied by the individual daily bag limit authorized for a species or species group.” 14 CCR §§ 27.60(c), 195(e)(4); see 50 C.F.R. § 660.721(d). Allowing anglers to pool their bag limits in this way can drastically increase daily limits.

NMFS must take action to amend the Highly Migratory Species Fishery Management Plan and implement regulations to address overfishing of Pacific bluefin tuna:

NMFS has the duty to propose regulations to reduce overfishing of Pacific bluefin tuna. This duty was triggered by NMFS’s 2011 and 2013 findings that (i) Pacific bluefin tuna continues to be subject to overfishing and overfished due to excessive international fishing pressure and (ii) international management measures in place are inadequate to correct the problem. 16 U.S.C. § 1854(i); 76 Fed. Reg. 28422; 78 Fed. Reg. 33240. The Magnuson- Stevens Act requires that within one year after this determination, the Council shall develop and submit “recommendations for domestic regulations to address the relative impact of fishing vessels of the United States on the stock.” Id.; see also PFMC 2013c (describing the requirements of the Magnuson-Stevens Act). Moreover, because the Council has failed to meet this statutory mandate, NMFS must propose regulations to address domestic impacts on Pacific bluefin tuna.  With this petition, we request that NMFS initiate formal rulemaking.

Excessive International Fishing Pressure

NMFS has clearly determined that Pacific bluefin tuna are overfished due to excessive international fishing pressure. NMFS has found that Pacific bluefin tuna abundance is close to its historical low due to excessive international fishing pressure (McInnis 2013).  In most years, since 1952, the species has been overfished and subject to overfishing.  The major country fishing Pacific bluefin tuna since 1952 has been Japan.   Mexico, Chinese-Taipei and Korea have increased fishing in the past 20 years, while the U.S. catch declined at the same time.  The highly migratory nature of Pacific bluefin tuna – potentially crossing the Pacific Ocean to travel between spawning grounds off Okinawa and foraging in the California Current – makes them susceptible to this international fishing pressure.

In the eastern Pacific Ocean, two major events marked changes in fishing for Pacific bluefin tuna: one causing the decline of the U.S. fishery and the other causing the rise of the Mexican fishery (Aires-da-Silva and Dreyfus 2012). First, beginning in the early 1980s, U.S. purse seine vessels abandoned traditional fishing grounds along the coast of Baja California because of the establishment in 1982 of exclusive economic zones (EEZs) extending 200 nautical miles along the oceanic borders of coastal states. This assigned sovereign powers to coastal states to manage resources within the EEZs and assure they are not subject to overexploitation (Ostrom 2008). Second, Mexico began targeting juvenile bluefin tuna for farming (pen rearing) to supply the sushi trade in the late 1990s. For stock assessment purposes, scientists divide the history of catch in the eastern Pacific Ocean into three stages: a U.S. target fishery (1952-1982); a transition period dominated by an extinguishing U.S. fishery (1993-1998) and a developing Mexican fishery (1996-2001); and a fully developed Mexican target fishery for pen rearing from 2002 to present.

Inadequate International Management Measures

NMFS has determined that international management measures in place are inadequate to correct the problem, i.e. are insufficient to end overfishing (McInnis 2013). Even though Pacific bluefin tuna is considered to be a single Pacific-wide stock, management is split between the Western and Central Pacific Fisheries Commission and the IATTC. While international measures remain important, they are currently inadequate to end overfishing and rebuild populations. As one recent example, at the 2013 Western and Central Pacific Fisheries Commission meeting in Fukuoka, Japan, a majority of the members  agreed on a 15 percent cut in fishing mortality only as an interim measure and deferred more significant cuts until the next assessment despite fishing mortality exceeding all potential reference points (see WCPFC CMM 2013-09; figure 4). Thus far countries have been unable to reduce the catch of Pacific bluefin tuna as needed to begin recovery.

Similarly, during its June 2013 meeting, the IATTC considered the problems facing Pacific bluefin tuna (see Resolution C-13-02). It noted that the International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean (ISC) recently reported 2010 biomass levels were near the lowest in history. Rather than react accordingly and reduce cumulative total limits, the IATTC extended their measures for another year.  By extending the 5,000 metric ton per year catch limit, including the 500 metric ton exception for all convention members and cooperating non-members with historic catch records, the IATTC failed to react to the current reality that Pacific bluefin tuna are rapidly disappearing.

NMFS has also recognized that its finding triggered Section 304(i)’s mandate for domestic regulations. 16 U.S.C. § 1854(i). In NMFS’s letter dated April 8, 2013, notifying the Pacific Fishery Management Council of the change in status to “overfished,” NMFS also acknowledged that “the Council is required to develop domestic regulations that address the relative impact of the domestic fishing fleet on Pacific bluefin tuna” (McInnis 2013 (emphasis added)). Once the Council submits proposed regulations, NMFS must initiate an evaluation. 16 U.S.C. § 1854(b). Within 15 days NMFS must make a determination whether or not to publish the regulations. Id. Domestic regulations to address the U.S. vessels’ impact are now required because NMFS’s determination triggered the process in section 1854(i).

The Council has failed to develop recommendations for appropriate domestic regulations or international actions (see PFMC 2014). NMFS must now promulgate regulations to address the impact of U.S. fishing vessels and develop and submit recommendations for international actions to the Secretary of State. 16 U.S.C. § 1854(i).

NMFS should add Pacific bluefin tuna to the list of prohibited species

The Petition highlights the following as reasons for this proposed action:

Once NMFS determined the Pacific bluefin tuna was overfished and undergoing overfishing, the PFMC had an affirmative duty to propose domestic regulations. The Council’s response that no new regulations were necessary doesn’t satisfy the intent of the 2007 MSA amendments directed at international overfishing.

In June 2013, the PFMC considered adopting a response to MSA requirements. They were informed the status of Pacific bluefin tuna had gotten worse since 2012 when the Council responded to NMFS’s 2011 notification that Pacific bluefin tuna was subject to overfishing (PFMCd 2013 at 22).  An analysis of the recreational bag limits off California and Oregon was suggested as was encouraging the Western and Central Pacific Fisheries Commission move in the direction of catch limits, like the IATTC.  It was proposed this analysis should start in June 2014 – a full two months after the one-year deadline would pass for the Council to recommend domestic regulations under section 1854(i). (Id.) The Council brazenly failed to conduct an analysis or consider whether to recommend regulations within the statute’s timeframe.

Even without recommendations from the PFMC, NMFS should act unilaterally to implement domestic regulations to address Pacific bluefin tuna’s U.S. fishing mortality. Many provisions of Section 1854 stand for the proposition that NMFS has an implied duty to act towards rebuilding overfished international fisheries.

The extremely depleted status of Pacific bluefin tuna[7] necessitates NMFS put into place the most protective domestic regulations possible. The Pacific bluefin tuna’s population is so low that it is extremely vulnerable to fishing mortality, even incidentally.

The economic effect of declaring the Pacific bluefin tuna a prohibited species would be minimal. S. based commercial vessels do not target Pacific bluefin tuna; but incidentally catch them, and recreational fishermen cannot sell Pacific bluefin tuna (WCPFC-NC9 2013a).

It is necessary to recover the population to healthy levels nearly unseen after 1952. This despite the fact that U.S. fisheries catch only a small percentage of Pacific-wide bluefin tuna catch.  A strong domestic stance in favor of drastic action can underscore the large reductions in fishing that are necessary internationally. Once the U.S. prohibits the catch of Pacific bluefin tuna, it may be easier to persuade Mexico and Japan to act accordingly until Pacific bluefin tuna have recovered.

It is not only precedent setting, but also acknowledges that past fishing effort should confer responsibility on a nation to reduce overfishing. The history of U.S. catch – the biggest bluefin tuna fishing nation in the eastern Pacific Ocean for three decades after 1952 (Although never close to Japan’s catch in the western Pacific) – makes a prohibition due to a decline in population even more symbolically powerful.

Biological benefits include the potential that some juvenile Pacific bluefin tuna will grow large, return to spawn, and strengthen the migratory pathways to the California Current. Small catch numbers belie the historical presence of large bluefin tuna off the U.S. west coast. The true impact of continuing to heavily fish juveniles in the eastern Pacific Ocean may not be obvious when comparing numbers of bluefin in the entire Pacific Ocean, many of which never come to the eastern Pacific.

The potential benefits of prohibiting U.S. fishing for Pacific bluefin tuna outweigh the burden of doing so. The status of the stock is so dire and the U.S. catch so minimal (2% of Pacific-wide landings) that U.S. fisheries have little left to lose.  The depleted status of the stock coupled with fishing continuing at levels too high, recovery is uncertain especially in light of predicted reductions in larval survival with climate change (see Kimura et al. 2010). The U.S. focus thus should be on implementing every way to achieve recovery as quickly as possible. The small percentage of U.S. catch cannot justify inaction.

There is great uncertainty surrounding climate change’s impacts to Pacific bluefin tuna and its potential for recovery, even in the best environmental circumstances. The cost of several years of not fishing Pacific bluefin tuna is essentially irrelevant. In those years scientific research regarding the migrations, genetics, and spawning of Pacific bluefin tuna will continue. A decade’s worth of scientific insights may completely change the way that we calculate the impact of continued fishing on bluefin tuna in the eastern Pacific Ocean. A reduction in fishing in the eastern Pacific Ocean, no matter what happens elsewhere, increases the odds of halting the population decline and finding answers to questions regarding Pacific bluefin tuna’s use of the California Current.

Given the nearly continuously overfished status of Pacific bluefin tuna, it is more than likely that U.S. fishing vessels did significantly impact Pacific bluefin tuna populations even though U.S. fishing declined greatly in the past 20 years. The more drastic the potential consequence of failing to act – here, failing to stop the decline and eventual extinction of Pacific bluefin tuna – the more urgent it is to act to reduce the probability.  While prohibiting U.S. catch of Pacific bluefin tuna by itself may not reverse the population decline, it does not follow that NMFS does not have a duty to take steps to slow or reduce overfishing.  Thus, we strongly request that NMFS act quickly to add Pacific bluefin tuna to the list of prohibited species that must be released immediately if caught at 50 C.F.R. § 660.711(a)

Recommendations for domestic regulations and international actions must consider the relative impact of U.S. fishing vessels on the stock. 16 U.S.C. § 1854(i). Because this section applies only when a stock is “overfished or approaching a condition of being overfished due to excessive international fishing pressure,” the fact that U.S. vessels are not causing the current overfishing, or even having a large impact on the stock in its already-depleted state, does not excuse the requirement. Id. To read it otherwise would provide an exception that would swallow the rule. Further, basing relative impact solely on the United States’ percentage of global landings (PFMC 2014) fails to take into account the factors and primary objective established in National Standard 1 Guidelines; specifically, the duty to rebuild overfished stocks. See 50 C.F.R. § 600.310(k).

Alternatively, NMFS should establish annual catch limits

While an outright prohibition on fishing for Pacific bluefin is the best way to ensure its rebuilding, NMFS should alternatively put into place annual catch limits for Pacific bluefin tuna and a permanent minimum size to protect year classes 1 and 2.  Annual catch limits, while not required for internationally managed stocks, underpin U.S. success in fisheries management because the limits cannot exceed science advisors’ recommendations.

Assuming Pacific bluefin tuna recovers to the point where annual catch limits allow fishing in the eastern Pacific Ocean, requiring a minimum size will benefit fishermen by allowing small fish migrating to the eastern Pacific Ocean to increase size before capture, thereby increasing yield.  Benefits of a minimum size include not only bigger fish for U.S. fishermen, but any fish not captured at a larger size will be able to return to traditional spawning grounds and potentially reinforce the genes and/or behavior that allows eastern migration

NMFS must amend the HMS-FMP to establish reference points for bluefin tuna to guide science-based management

Establishing biological reference points, by which scientists can evaluate the status of the Pacific bluefin tuna, has the potential to greatly increase awareness and improve management, thus should be a NMFS priority in amending the FMP.

The lack of specific values for Pacific bluefin tuna reference points has already crippled scientists’ ability to provide conservation advice. Despite the depleted stock status, the 2012 assessment failed to provide specific conservation advice because the “ISC requires advice from the WCPFC regarding which reference point managers prefer.” (ISC 2013.)

Without such thresholds, scientists cannot convey management advice with specificity, thereby greatly decreasing the likelihood of science- based fisheries management.

NMFS should recommend to the Secretary of State and the Congress the international actions to end overfishing of Pacific bluefin tuna:

The MSA requires that NMFS develop and submit recommendations to the Secretary of State, and to the Congress, for international actions that will end overfishing in the fishery and rebuild the affected stocks, taking into account the relative impact of vessels of other nations and vessels of the United States on the relevant stock. 16 U.S.C. § 1854(i).

NMFS should make robust recommendations to end overfishing of Pacific bluefin tuna including (1) establishing a high seas moratorium on all fishing, (2) implementing a Pacific-wide minimum size for bluefin tuna catch, and (3) achieving a steep reduction in Pacific bluefin tuna quota for all countries to meet rebuilding targets that are based on established reference points.

High Seas Moratorium

NMFS should consider recommending that the Secretary of State and Congress encourage international action to close the high seas to all fishing.  While closing the high seas alone may not protect bluefin tuna from overfishing because countries will continue to target bluefin tuna within EEZs, it is worth evaluating as a tool in the toolbox.  The distant-water Japanese longline fishery catches relatively small numbers of Pacific bluefin tuna (ISC 2013).

The high seas closure would be a measure to foreclose catch in areas undeniably within Commission jurisdiction and could similarly indicate to member countries that measures are immediately necessary.

Scientific support for closing high seas to fishing is growing and includes support for both economic reasons and population dynamics. Crow and Costello modeled governance and biological scenarios to determine effects of high seas closures. They found that for fisheries targeting pelagic, migratory stocks, where some but not all of the fishery occurs in EEZs, closing the high seas nearly always benefited the fishery by increasing profits and may encourage stock rebuilding by protecting a large range of open ocean habitat.  Based on these preliminary studies, a high seas closure could reduce Pacific bluefin tuna fishing and be politically palatable.

Pacific-Wide Minimum Size

NMFS should recommend to Congress and the Secretary of State implementation of a Pacific bluefin tuna minimum size to protect young bluefin tuna from fishing mortality. These recommendations are necessary:

– to protect young bluefin tuna from fishing mortality;

– to begin to rebuild the population of Pacific bluefin tuna and maintain migrations from spawning grounds to the eastern Pacific Ocean;

– to potentially allow bluefin tuna time to migrate to the eastern Pacific Ocean, potentially reestablishing the historical range;

– because it may allow quicker recovery if larger tuna escape capture until maturity.

Steep reductions in Catch

The United States must continue to push the international management organizations to achieve steep reductions in Pacific bluefin tuna quota for all countries in order to meet rebuilding targets that are based on established reference points.

We recommend that the United States suggest a precautionary reference point and recommend the international organizations adopt the FMP’s definition of optimum yield as 0.75MSY. A rebuilding plan and the steep reductions in catch necessary to achieve rebuilding targets will follow from setting precautionary reference points.

Conclusion:

The low population of Pacific bluefin tuna – just 3.6 % of unfished biomass remaining – requires immediate action under the Magnuson-Stevens Act to reduce fishing. NMFS should use its full authority to protect the Pacific Ocean from these effects and lead the effort for progressive fishery management by prohibiting fishing for Pacific bluefin tuna.

NMFS must promptly respond to this petition and initiate the petitioned-for rulemaking. The provisions of this Petition are severable. If any provision of this Petition is found to be invalid or unenforceable, the invalidity or lack of legal obligation shall not affect the other provisions of the Petition.

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[1] You can access the Petition through the following link – http://www.regulations.gov/#!documentDetail;D=NOAA-NMFS-2014-0076-0002

[2] Inter-American Tropical Tuna Commission

[3] Fishing Mortality is the portion of a species total mortality rate that is caused by fishing.

[4] Pub. L. No. 109-479, 120 Stat. 3575 (2007)

[5] Status determination criteria are quantifiable factors, or their proxies, used to determine if overfishing has occurred or if the stock is overfished. 50 C.F.R. § 600.310(e)

[6] Those species and species groups whose retention is prohibited unless authorized by other applicable law (for example, to allow for examination by an authorized observer or to return tagged fish as specified by the tagging agency).  See HMS FMP, through July 2011 Amendment, Page xii.

[7] 96% decline from unfished population levels

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