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Marine Resources Act 2005 - Marine Resources (Longline Fishery) Regulations 2008

COOK ISLANDS

MARINE RESOURCES (LONG LINE FISHERY) REGULATIONS 2008
2008/2
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Sir Frederick Goodwin, KBE

Queen's Representative

ORDER IN EXECUTIVE COUNCIL

At Avarua, Rarotonga, this 27^th day of August 2008

Present:

HIS EXCELLENCY THE QUEEN'S REPRESENTATIVE
IN EXECUTIVE COUNCIL

PURSUANT to Section 6 of the Marine Resources Act 2005, the Queen's Representative, acting by and with the advice and consent of the Executive Council, hereby makes the following Regulations:

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ANALYSIS

1. Title and commencement
2. Designation of Longline Fishery
3. Fishery Plan

Schedules

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REGULATION
2008/21

Regulations to provide for the designation of the Longline fishery and the related Plan

1. Title and commencement - (1) These regulations may be cited as the Marine Resources (Longline Fishery) Regulations 2008.

(2) These regulations shall come into force on the day they are assented to by the Queen's Representative.

2. Designation of Longline Fishery - The large pelagic longline fishery is hereby declared to be a Designated Fishery in terms of section 6 of the Act.

3. Fishery Plan - The Fishery Plan approved by the Secretary in accordance with section 6 of the Act as attached in the Schedule hereto shall apply to the longline fishery.

Grover Lee Harmon
Clerk of the Executive Council

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These Regulations are administered by the Ministry of Marine Resources
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SCHEDULES

LONGLINE FISHERY PLAN: 2008

PART 1
PRELIMINARY INFORMATION

1. Title - The title of this Fishery Plan is the Longline Fishery Plan, 2008.

2. Application - (1) The Fishery Plan has been prepared in accordance with section 6 of the Marine Resources Act, 2005. The large pelagic longline fishery is hereby declared to be a Designated Fishery in terms of section 6.

(2) The Fishery Plan supplements, and does not in any way replace or override the provisions of the Act or regulations promulgated under the Act (the Regulations). It includes those provisions of the Act and the Regulations that are particularly relevant for the large pelagic longline fishery in the Cook Islands fishery waters and adds some additional requirements. All activities subject to the Fishery Plan shall be subject to the applicable provisions of all Acts and Regulations of Cook Islands.

(3) The Fishery Plan applies to all commercial longline fishing targeting large pelagic species within the fishery waters, except that the Fishery Plan does not apply to -

(a) subsistence fishing; or

(b) recreational fishing, including the use of recreational vessels for hire or charter.

(4) The Fishery Plan does not apply to fishing beyond the fishery waters. Any licence issued under the Plan for fishing within the fishery waters does not authorise fishing in areas beyond national jurisdiction (i.e. High Seas). Fishing in the high seas requires a separate authorisation to make sure the vessel complies with any applicable RFMO requirements.

(5) The Fishery Plan shall enter into force by Order in Executive Council and the management measures described in this Fishery Plan shall have the full force and effect of regulations promulgated under the Act in accordance with s6(7) of the Act.

3. Amendment - The Fishery Plan may be amended by Order in Executive Council.

4. Definitions - All words shall bear the meanings ascribed to them in the Act unless the context indicates otherwise or as otherwise set out in this section -

"Act" means the Marine Resources Act 2005;

"bycatch species" means non-target, dependent or associated species of the target species;

"commercial fishing" means taking fish for sale;

"commencement day" means the day on which the Fishery Plan comes into force in accordance with the provisions of section 6(6) of the Act;

"conservation and management measures" means measures to conserve and manage one or more species of living marine resources in accordance with the objectives of this Fishery Plan and the provisions of sections 3 and 4 of the Act;

"large pelagic longline fishery" means fishing for those pelagic target species set out in section 5 of this Fishery Plan and any bycatch by means of longlining;

"longline fishing" means fishing using equipment that comprises a mainline, branchlines and hooks.

5. Identification of the Fishery - (1) Target Species - The large pelagic longline fishery currently targets tunas (albacore (Thunnus alalunga), bigeye (Thunnus obesus), Pacific Bluefin (Thunnus orientalis), skipjack (Katsuwonus pelamis) and yellowfin (Thunnus albacares)), billfish (blue marlin (Makaira nigricans), black marlin (Makaira indica), striped marlin (Tetrapturus audax) and swordfish (Xiphias gladius)), sharks (including a range of shark species), and other large pelagic species (such as mahi mahi (Coryphaena hippurus), wahoo (Acanthocybium solandri)).

(2) Area - The Fishery Plan applies to the large pelagic fishery within the fishery waters of the Cook Islands.

(3) Within the fishery waters, the large pelagic longline fishery is characterised by a distinct split between two fisheries -

(a) a fishery in the northern group, focused on albacore, mostly frozen, with catches mainly landed outside Cook Islands; and

(b) a fishery in the southern group, landing mainly fresh fish in Rarotonga, in which catches of other species besides albacore, including marlins, swordfish, bigeye, pacific bluefin and yellowfin, are also important.

6. Status of the Fishery - (1) Fleet Size - Before 2000, tuna longline fishing was largely conducted by foreign flagged vessels operating under access agreements. Since 2000, there have been no access agreements for longline fishing, but Cook Islands businesses with an investment in the fishery have been able to charter foreign owned vessels to operate under the Cook Islands flag. Over that period, the fleet has gone through a boom and bust cycle, peaking at 51 vessels licensed in 2003. The table below shows the number of Cook Islands licensed fishing vessels since the year 2000.

(2) Catches - Total catches grew rapidly from 2000 to 2005, and declined in 2006, which corresponds with total catches for the northern fishery. Total catches for the southern fishery have been decreasing since 2003 due to the decline in the number and size of the vessels operating out of port Avatiu, which resulted due to the inconsistent catch rates dominated by climatic factors. Albacore tuna is the predominant catch species in both fisheries, the bulk of which is caught in the Northern fishery and makes up an average of 57% of the total catch composition.

NB: Data for 2002 was sourced from the MMR TUFMAN database, where catches are raised according to all operational data collected. The data for 2006 was collected from the Cook Islands local database, which only uses vessel catch and effort logsheet data.

(3) Catch rates - Catch rates are substantially higher in the north due to the higher productivity of the ecosystem when compared to the southern fishery. The Cook Islands fishery however, has been subject to a sustained recent decline, with the overall trends (as shown in the figures below) affected more by the declines from the northern fishery. The declines in catch rates have not been as dramatic as those in the north.

(4) Markets - In addition to the local market, the major markets include albacore to the canneries in Pago Pago, yellowfin, bigeye and swordfish to Japan and the US. The table below shows the 2006 average export prices in US dollars (USD).

(5) Regional Management of Highly Migratory Fish Stocks - States and Territories involved in fishing for the regional stocks of highly migratory fish cooperate in the management of those stocks through the WCPF Commission. The table below summarises the biological status of the stocks of the four main tuna species that occur in Cook Islands waters and the measures in place for the conservation and management of those stocks in the Western and Central Pacific Ocean (WCPO). In addition, the WCPF Commission has adopted resolutions relating to the conservation of non-target species, including seabirds, sharks and turtles.

7. Objectives - The objectives of the Fishery Plan are -

(a) to provide for the sustainable use of large pelagic fish resources for the benefit of the people of the Cook Islands;

(b) to ensure the long-term sustainability of the large pelagic longline fishery,

(c) to mitigate the impact of fishing on non-target species;

(d) to develop and maintain the economic viability of the large pelagic longline fishery and associated fishing industry, including the development of the Cook Islands domestic fleet and onshore processing in the Cook Islands

(e) to ensure that Cook Islands meets its international environmental and fisheries obligations, and position Cook Islands for equitable participation in the regional tuna fisheries;

(f) to protect traditional and small scale commercial inshore fishers;

(g) to protect the integrity of government revenue; and

(h) to fulfil the purposes and principles in the Act.

8. Principal Ways to Achieve the Objectives - (1) The measures to be applied to achieve the objectives of the Plan include the following -

(a) establish licensing arrangements that encourage fishing operations to provide greater benefits to Cook Islands, particularly through the landing, value adding and processing of fish in Cook Islands;

(b) limit the size of the large pelagic longline fleet in the fishery waters to avoid local depletion particularly of albacore;

(c) provide secure access with transparent procedures that encourage investment in tuna longline fishing and processing;

(d) require the use of fishing gear and methods that reduce the impacts of fishing on non-target species;

(e) monitor fishing operations and catches, particularly through vessel monitoring systems, onboard observers and port sampling;

(f) collect other scientific and fisheries information on the tuna longline fishery, including collection and analysis of daily catch and effort information;

(g) combat IUU fishing and ensure compliance with laws, regulations, licence conditions and provisions of the Fishery Plan;

(h) implement relevant measures of the WCPF Commission and the relevant provisions of the WCPF Convention and other relevant international fisheries and environmental instruments.

(2) The measures set out below involve a shift away from the dependence on demise charter vessels that have characterised the tuna longline fishery since its rejuvenation in 2001. In the period from 2001 to 2008, licensing policy required foreign boat owners and investors to work through national boat owners to participate in the fishery by making their vessels available to Cook Islands boat owners under charter arrangements. Foreign boat owners could not apply directly for a licence. With concessional levels of licence fees in place, this allowed Cook Islands boat owners to extract fee payments from the foreign boat owners as an incentive to Cook Islanders to invest in tuna longline fishing.

(3) In the process of preparation of this Plan, the Crown Law Office advised that the charter incentive arrangements breached requirements of the Public Monies Act. In response, the charter incentives have been abolished and replaced with a strategy that has three main elements -

(a) licence fees have been raised from the previous concessionary levels to substantial levels as recommended by the Crown Law Office, reflecting the economic value of the opportunity to fish in Cook Islands waters, with reduced fees for vessels that are locally-based or unload fish in Cook Islands as incentives for domestic development;

(b) a limit on licence numbers has been established (initially 40), with criteria giving preference to Cook Islanders, and to vessels involved in operations that promote Cook Islands social and economic development;

(c) it is proposed to establish a Domestic Tuna Fishery Development Facility from which grants or loans could be made available to qualifying individuals or companies. This Facility would replace the assistance previously provided by the earnings of Cook Islands boat owners from charters with a transparent industry assistance programme. Key issues such as the forms of assistance to be provided, institutional arrangements, the level of funding and whether the Facility should be financed by a transfer directly from licence fee receipts or by separate appropriations will be addressed in a feasibility/design study.

PART 2
CONSULTATIVE PROCESS

9. Stakeholder Consultation - (1) The Secretary shall organise consultations with key stakeholders in the pelagic longline fishery at least once in each calendar year.

(2) The scope of the consultations shall include matters -

(a) related to the management and regulation of fishing including licensing and conditions of fishing;

(b) related to the development of fishing and fish processing including investment policies, financial arrangements and projects to promote large pelagic fishing, marketing or processing;

(c) related to socio-economic or environmental impacts of large pelagic fishing, processing and marketing; and

(d) such other issues related to the large pelagic longline fishery as the Secretary may decide.

PART 3
LICENSING COMMITTEE

10. Licensing Committee - If the number of applications at any point exceeds the licence number limit (initially 40), a Licensing Committee will be established in order to provide transparent advice to the Minister and the Secretary on the granting of licences in accordance with terms of reference to be determined by the Minister. The Committee will include representatives of agencies such as Crown Law and MFEM as well as MMR.

PART 4
ECOSYSTEM CONSIDERATIONS

11. Limits on Fishing Effort - (1) The number of tuna longline licences will initially be limited to 40.

(2) The Secretary will monitor the quarterly level of fishing effort and catch.

(3) If the Secretary determines that the level of total commercial longline catch in the fishery waters north of 15 degrees south exceeds 4,000 metric tonnes in any 4 quarter period, he or she will review the impact of this level of catch on achievement of the objectives of the Plan, and may limit the total number of longline, licences to less than 40, or apply appropriate limits to fishing in the north.

(4) The Secretary may apply additional limits to fishing with the approval of the Minister/Executive Council and after consultation with the Large Pelagic key stakeholders in the large pelagic fishery when he or she is of the opinion that it is in the interest of the sustainability or economic viability of the commercial large pelagic longline fishery.

12. Conservation of Target Species - All catches of albacore, bigeye, swordfish and yellowfish will be closely monitored.

13. Protection of Non-Target Species - (1) Seabird Mortality - Fishers will be required to adopt mitigation measures as required by the NPOA for seabirds, as well as any other conservation and management measures required by RFMO’s, such as using tori lines. Fishers must also record any encounters with seabirds (live or dead) and report this to MMR.

(2) Turtle Mortality- Fishers will have to adopt the use of circle hooks in all fishing activities, as well as follow the ‘Releasing hooked turtles’ guidelines on how to care for the release live hooked marine turtles. Any further requirements by RFMO conservation and management measures, as well as under the marine turtle NPOA, will also have to be adopted. Marine turtle encounters (live or dead) must be recorded and reported to MMR.

(3) Shark finning - Will be banned by requiring retention of all parts of any retained shark catches excepting head, guts , and skins, to the point of first landing. This will be monitored by ensuring that the total weight of fins shall equate to no more than 5% of the total weight of shark carcasses retained. This ratio may be changed accordingly to scientific review.

(4) Other non-Target species - Fishers will be required to avoid the capture, and release unharmed, to the extent practicable, non-target species that are not to be retained.

14. Other Ecosystem Issues - Marine Pollution - A ban will be imposed on all dumping of non-biodegradable waste at sea, consistent with the MARPOL convention. Biodegradable wastes may only be dumped at sea at a distance greater than 12 nautical miles from land.

PART 5
CONSERVATION AND MANAGEMENT MEASURES

15. Vessel Licensing - (1) No vessel 10 metres or more in length shall be used for commercial large pelagic longline fishing or related activities in the fishery waters except in accordance with a valid license issued pursuant to the Act.

(2) Applications for a licence for commercial large pelagic longline fishing shall be made in the form set out in Schedule 1, and in accordance with Appendix 1 to that Schedule.

(3) No licence shall be issued unless the required fees and other forms of compensation have been paid in accordance with this Fishery Plan and section 39 of the Act.

(4) The Minister or Secretary, as appropriate, may deny an application for a licence on any of the following grounds -

(a) the owner or operator is the subject of proceedings under the bankruptcy laws of any jurisdiction and reasonable financial assurances have not been provided;

(b) there has been failure to satisfy a judgment or other determination for a contravention of the Act by the owner or operator of the vessel in respect of which application for a licence has been made until such time as the judgment or other determination for has been made;

(c) an owner or operator of the vessel has committed an offence against the laws of the Cook Islands; or

(d) the previous offending history (if any), of the vessel's owner, operator or master.

(5) The Minister or Secretary, as appropriate, shall deny any application for a licence where the granting of the licence would conflict or would be inconsistent with the requirements of the Act, this Fishery Plan or any international conservation and management measure.

(6) No Purse Seine vessels shall be licensed to fish within the Cook Islands EEZ, outside of those included under the US Multilateral Treaty on Fisheries.

16. Licensing Criteria - When considering, an application for a licence, the Minister or the Secretary, as appropriate, shall have regard to -

(a) whether or not the applicant is a Cook Islander; and

(b) where the applicant is a company, the extent to which the beneficial control of the company vests in Cook Islanders;

and may also have regard to -

(a) contribution of the applicant to social and economic development;

(b) the ability of the applicant to use the licence in a satisfactory manner; and

(c) the compliance record of the applicant.

17. Terms of Licences - (1) Every licence for large pelagic longline fishing shall be valid for a period not exceeding twelve months.

(2) Notwithstanding anything contained in paragraph 16(1) the Secretary may, upon application, renew a licence granted under paragraph 16(1) in respect of a Cook Islands fishing vessel, for a period of up to four years, provided that -

(a) the vessel continues to be operational; and

(b) the vessel has not been used in contravention of the Act, this Plan or any condition of a licence.

(3) The Secretary shall not unreasonably deny any such application.

18. Conditions of Fishing - (1) All commercial large pelagic longline fishing shall be conducted in accordance with the Act, the Regulations, conditions of licences and directives given by the Secretary under section 21 of this Plan.

(2) No person engaged in commercial large pelagic longline fishing may fish within 12 nautical miles of any island.

(3) A set of standard licence conditions for the large pelagic longline fishery is set out in Schedule 2.

(4) The Minister or Secretary, as appropriate, may attach to any licence such special conditions as may be required for the proper management of the large pelagic longline fishery.

19. Appeals - Any person affected and aggrieved by -

(a) the refusal of the Secretary to issue or renew a licence in accordance with this Fishery Plan in respect of a commercial large pelagic longline fishing vessel; or

(b) the cancellation or suspension by the Secretary in accordance with this Fishery Plan or the Act of a licence issued in respect of a commercial large pelagic longline fishing vessel,

may, within 30 days of the receipt of notification of that decision appeal against it to the Minister, whose decision shall be final.

20. Obligation of Licence Holders - Licence holders shall -

(a) comply with this Fishery Plan;

(b) take measures to ensure that they exercise effective control over vessels for which they are granted licences during the period of the licence;

(c) ensure compliance with this Fishery Plan and the Act by all vessels licensed by them;

(d) comply with any directive given under paragraph 21 below; and

(e) comply with all conditions specified on the vessel licence;

PART 6
MISCELLANEOUS

21. General Obligations of the Secretary - (1) The Secretary shall establish a system for the collection and compilation, storage and exchange of data and other fishery related information on the tuna and large pelagic fishery. This information shall include position reports, catch and effort log sheets, observer and other scientific data. The Secretary shall determine the characteristics and procedures of such a system in accordance with international and regional standards and the objectives of the Act and this Fishery Plan.

(2) Observer Programme - The Secretary shall establish an observer programme for the purpose of achieving a level of observer coverage in the tuna and large pelagic fishery that the Secretary is satisfied is appropriate to meet the objectives of the Act and this Fishery Plan, and which is consistent with any applicable regional and international standards and obligations. This may include participation in regional programmes, where appropriate.

(3) Monitoring, control and surveillance (MCS) - The Secretary may establish an MCS programme that assists in meeting the conservation and management objectives of this Fishery Plan and all relevant international and regional obligations. Such a programme may include -

(a) vessel monitoring systems;

(b) the provision of observers and the conditions under which they operate;

(c) a vessel inspection regime;

(d) a port and catch inspection regime;

(e) the prohibition or regulation of transhipment at sea or in port;

(f) aerial and sea surveillance;

(g) participation in co-operative regional arrangements.

22. Directives - (1) The Secretary may, by notice in writing, give directives providing for such matters as are contemplated by or necessary for giving full effect to the provisions of this Fishery Plan including, but not limited to -

(a) the return or abandonment of any target species or bycatch;

(b) the impact of fishing operations in the aquatic environment;

(c) the landing of any fish caught under the authority of a licence outside the fishery waters;

(d) the maintaining, completion and furnishing of log books, records, returns or other information;

(e) the administration, implementation or operation of any monitoring, control or surveillance programme;

(f) the seasonal or permanent closure of areas to fishing under the authority of any licence.

(2) Any conditions or obligations imposed under any directive issued pursuant to subsection 1 above may be additional to, or more restrictive than, but shall not be inconsistent with, the provisions of this Fishery Plan or the Act.

(3) Any person who fails to comply with any directive issued under subsection 1 shall commit an offence and, upon conviction, shall be liable to a fine not exceeding $100,000.

23. Fees - Fees shall be payable as set out in Schedule 3.

24. Biennial Review of the Fishery Plan - (1) The Secretary shall, prior to the expiry of every 2-year period from the commencement date of the Fishery Plan, conduct a review of the conservation and management measures set out in this Fishery Plan, and determine whether the Fishery Plan should be amended and/or revoked.

(2) In reviewing the Fishery Plan the Secretary shall have particular regard to, amongst others -

(a) the objectives of the Act and this Fishery Plan;

(b) the effectiveness of the data collection, observer and monitoring, control and surveillance programmes;

(c) the status of the stocks (both target and non-target or associated species), including changes in yield, species, size composition or distribution;

(d) the status and economic viability of the fishery and associated fishing industry;

(e) the appropriateness of fees and charges;

(f) the effectiveness of the conservation and management measures.

(3) Having conducted the analysis, the Secretary shall make recommendations to the Minister as to the continued management of the large pelagic longline fishery. In particular the Secretary may make recommendations regarding the amendment, revocation or continuation of the Fishery Plan.

(4) The Secretary shall consult with key stakeholders prior to making any recommendation to the Minister as a result of the review.

25. Amendment of the Schedules - (1) The Secretary may revise the Schedules as necessary which shall come into force by Order in Executive Council.

(2) The Secretary shall advise holders of licences in writing of any revisions to the Schedules.

26. Delegation - The Secretary may, in writing, delegate to an officer of the Ministry, any of his powers or functions under this Fishery Plan, except this power.

27. Savings - This Fishery Plan shall be interpreted in a manner consistent with the provisions of the Act provided however that if any provision of this Fishery plan or any conditions imposed by or under this Fishery Plan are held to be invalid, the invalidity does not affect the provisions of any other part of the Fishery Plan or conditions imposed, and to this end the remaining provisions of the Fishery Plan or other conditions shall be treated as severable from the invalid provisions or conditions.

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SCHEDULE 1

LICENCE APPLICATION FORM

GOVERNMENT OF THE COOK ISLANDS

The Marine Resources Act 2005

APPLICATION FOR A FISHING VESSEL LICENSE

(Marine Resources (Licensing) Regulations 2007 - Regulation 4 or Fishery Plan 2007)

INSTRUCTIONS: * Clearly mark the boxes √ where appropriate

* Answer all the questions on this form either by filing in the space provided or checking the appropriate answer

* Underline surname or family name

*Address means complete mailing address

*All units metric; Please specify if other units used

VESSEL DETAILS

Appendix 1

Process of Licensing Fishing Vessels

Process of Licensing Fishing Vessels (Checklist)

In order to be a fishing license holder, one must complete the "Fishing Vessel License Application Form", and submit the completed application with the following documents attached or enclosed:

• Certificate of Incorporation

• Details of Shareholders/Ownership

• Proof of Ownership - Bill of Sale

• Cook Islands Shipping Registration Certificate (if vessel is more than 15 meters in

length)

• Recent photographs of vessel after being registered (whole starboard, port and stern shots)

• Certified Schematic and Stowage Plans (General Arrangements plan)

• Cook Islands Vessel Safety Certificate

• Cook Islands Radio Operations License

• A completed Advanced Track Application Form (Vessel Monitoring System)

• Crew list and details

• Fishing Venture/Business Proposal

• Copies of any other fishing license/permit currently valid in another zone

• And any further information as may be requested by the Secretary of Marine Resources resulting from the above

NOTE: All of the above in the checklist must be completed and submitted before a license will be processed. An invoice will be issued in respect of the license fee for successful applicants and the license will only be issued upon receipt of payment of this fee.

SCHEDULE 2

CONDITIONS OF FISHING

As per Marine Resources (Licensing) Regulations 2008

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SCHEDULE 3

FEES

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