Ideal port state configuration

Following on my post on the ideal Flag State set up for a CDS, I follow here the same principle but for a Port State, based on what I wrote in our recent FAO book for a CDS and that I adapted a bit for the Pacific context for a report I’m doing for FFA.

It is largely the quality of port state monitoring, and the work of its port-based fisheries officers in monitoring fishery transactions in its ports, that determine the level of risk of illegally sourced fish entering the land-based supply chain. There is a scale of responses available to the port State, and it is essential that this is tied to risk and that this risk is understood.

A port state constitutes the last opportunity to detect infringements and deny certification of IUU-derived catches before the transfer into land-based supply chains. Because of this, port States play a vital role in effective PSM and CDS development by providing additional verification and ensuring flag States are more accountable for vessel monitoring. This is because, even though a flag State can certify catch, port States can stop this catch from passing through their ports and effective structures and legislation can ensure that the benefits are not returned to those undertaking IUU fishing.

Once a flag state and a port state have signed off a catch certificate and authorised the landing, in the absence of information indicating otherwise, this catch certificate then becomes irrefutable, and the product enters the land-based supply chain. This then means that the product has entered the market, money changes hands, and any ability to deny market entry to IUU-derived product, outside of procedural concerns, becomes near impossible. 

Once the product has passed through the port, it is more a matter of accounting for the quantity and the form in which product certified under a certificate flows through the supply chain to the consumer. Falsely certified and landed IUU products no longer have to be laundered into the supply chain because:  

1. they have obtained official validations from flag, coastal and port states that the product is legal; and
2. whilst procedural issues can delay or restrict product progress through the value chain, identification of product derived from an illegal fishing operation becomes more problematic and difficult the further down the supply chain it travels.

Port state control contacts, cooperation and communication
The first and foundational element in the effective management of fishing ports is to ensure that all parties can make contact with port state authorities. Effective fisheries compliance and MCS is largely information based, both officially recorded through means such as log sheets, but also other informal information, such as from Operators who witness events and may have important information to communicate about fishing vessels intending to visit particular ports. This can only happen if port state authorities in charge of fishery law enforcement are easily identified and contacted by third parties.

Communication is central to effective PSM both prior to, during and following vessels entering their ports and using port-based facilities. As noted earlier in the section on Flag State Responsibilities, it is important that there is the flow of information between flag, port and coastal States to identify and respond to illegality effectively. When port states establish that infringements have been perpetrated by foreign fishing vessels and deny them port access, they should notify the flag states concerned and as well as related parties such as coastal states and RFMOs. Similarly, port States should be able to also communicate inspection results and the activities of foreign vessels to flag state and RFMOs. 

Designated Fishing Ports
To administer fishery law enforcement effectively, ports to be used by fishing vessels should be so identified as such. All non-identified ports are off-limits to fishing vessels and may only be used in cases of force majeure. These decisions that are made around designating ports should be informed by the resources available to the port State to monitor activities and manage risk. All port States have a limited human capacity to manage vast marine areas and numerous port and landing locations, so it is vital that they direct vessels to areas where they can ensure sufficient resource will be present. 

Once ports are determined, fishery administrations must have a suitable monitoring and inspection framework for fishing vessels moving in and out of ports. The monitoring framework should ideally aim to record at least all inbound and outbound vessel movements, trip activities and areas for incoming vessels and to gain prior knowledge of the activities vessels are planning when entering or leaving port.

From a CDS perspective, it is essential that fishing vessels unload in identified ports staffed by informed and competent authorities so that attempts at landing IUU products are identified and managed.

Prior notification or advance request to enter port
Prior notification of port state authorities is a matter of the vessel master announcing his intended arrival at a given port and requesting permission to enter. This ensures that the port Authorities have sufficient time to assess risk, decide on a response to that level of risk presented and ensure that sufficient resources are available to respond to this when or if the vessel arrives at the port. The required notification times generally range from 48 to 72 hours before arrival.
Prior notification enables authorities to examine vessel details, licenses, operations and decide if an inspection is warranted before the catch is unloaded, and therefore prepare the necessary preconditions for a catch certificate.

Because it may not be possible to inspect all fishing vessels entering a port, vessels indicating a higher level of risk of having completed IUU fishing and may be attempting to unload IUU-derived product can then be prioritised.

Port entry and unloading authorization
In line with the recognition of port State’s sovereign rights over their ports and activities that occur within them, port States should develop authorization processes for both port entry and unloading of fishery products and other related port-based activities. The establishment of port entry and landing being conditional upon confirmation of authorization by the port State ensures that the structures to support the mechanisms that are applied in a CDS are in existence and can be utilized in support of CDS implementation. 

In many respects, these authorisations are the centrepiece of port state action to deter IUU fishing and ensuring that a CDS achieves its goals. These reinforce the port State’s sovereign control over activities in their ports and can deny unloading authorizations to fishing vessels suspected of IUU fishing or proved to have carried it out.

Effective PSM and CDS implementation depend on the ability to ensure that no products can be unloaded without being satisfied that they are not the product of IUU activities and that catch certificates are validated by a flag state and the port state where unloading take place.

Port inspection
The designated ports must have the capability to conduct robust vessel inspections. Sufficient numbers of trained fisheries inspectors with sufficient enforcement powers to effect detailed interrogation of the vessel, gear and catch must be present in all designated ports to handle inspections of fishing vessels in ports.

As outlined in Article 14 of PSMA and reflected in WCPFC CMM 2017-02, port States should collect the following minimum information during inspections and automatically forward the findings to flag states and RFMOs as appropriate:

•  the port, date and time of any inspection;
• the flag state of the vessel, and its identification;
• the name, nationality and qualifications of the master;
• authorizations for fishing and transhipments;
• type of fishing gear;
• catch on board – origin, species, form and quantity, and catch to be landed/ retained on board;
• total catch landed and/or transhipped; and
• inspection findings.

The inspection process, supported by the information collected during a vessel inspection, enables port states and flag States to determine whether vessels have engaged in or supported IUU fishing. This can be done on behalf and at the request of a flag State and, if notified by a port State suspects that a vessel in its port has engaged in IUU fishing, in line with WCPFC CMM 2017-02, the flag State shall immediately and fully investigate the matter in accordance with Article 25 of the Convention. 

The port State may also take action itself and, in some circumstances, a port state may take additional action if IUU fishing has taken place in waters under its jurisdiction. In these circumstances, the port state may apply its regulations as a coastal state, investigate the matter and prosecute and sanction offenders. 

Even where suspected IUU fishing may have taken place in waters beyond the jurisdiction, the port state may take action against the vessel and its operators with the consent of or at the request of the flag and/or coastal states concerned or if its own legislation recognizes the commission of the offence or attempt to bring IUU fish in to a port under its control.

Importation
In relation to CDS, importation refers to the act of transporting fishery products, already landed in another State, into a State or territory by means other than a fishing vessel. Whilst some FFA members may import some fisheries products for domestic consumption, the key concern for CDS is fisheries products that are being imported for processing and further exportation. In these circumstances, the importation of fisheries products is more of an issue of a country as a processing state than as a port state, due to the fact that this product has already been landed in another State and legality (hopefully) established.

CDS Specific requirements
In order for a CDS to be effective there are specific controls and steps that should be supported by port-state mechanisms and these are outlined in the following sections.

Harvesting: end of a fishing trip and port entry
Effective CDS design envisages the preparation of catch certificates that are submitted to flag state authorities for validation and then the validated certificates are submitted to port state authorities prior to landing. Catch certificates received from an agent or catch certificate ID numbers that enable access in online CDS registries should be verified at the time of, and compared with the information in, an advanced request for entry to port (AREP). 
There are three critical decision points in effective PSM, when a vessel requests port entry, when a vessel arrives in port and after the port inspection (if required). If verifications indicate suspected IUU fishing or a lack of the correct authorisations, then port states must be in a legal position to refuse port use, and, if suspicions arise after a vessel inspection in port, to refuse unloading operations and access to port services.
These port-specific control and management measures are a critical element of CDS, but are not automatically pre-packaged in CDS. Port states themselves must develop these mechanisms in accordance with international fisheries law and WCPFC PSM CMMs. 

Unloading: transshipments in port
During transhipments catch certificates are handed from fishing vessel masters to reefer masters. They must generally be counter-validated by the port states in whose port the transhipments take place, assuming the transhipment takes place in port, and in these circumstances, counter-validation by the reefer’s flag state is generally not required. This applies to unilateral and multilateral CDS.

The port state is thus the designated authority under a CDS to ascertain that the declarations regarding transhipments and the information recorded in catch certificates are true. In these circumstances, as noted in earlier sections, it is important to ensure that there is good information flow between the flag State and port State to ensure that there is not a disproportionate burden placed on the post State due to a lack of flag State monitoring.
With regard to in-port transhipments, the port authority must consider the following when authorizing and monitoring these operations:

• Is the fishing vessel preparing to tranship authorized to operate in the fishery from which catches originate – flag state/RFMO?
• Are there any reasons to suspect that IUU fishing has occurred?
• Is the reefer authorized to operate in the fishery from which it takes catches?
• Is the reefer and fishing vessel complying with RFMO transhipment rules?
• Are the transhipped species, volumes and product types identical to those declared in the catch certificate?
• Has the catch certificate been validated?

These considerations demonstrate that port State oversight of in-port transhipments requires a sound understanding of the fishery and the relevant regulations. This is difficult for port States to maintain across all fisheries and therefore this is when flag State and coastal State monitoring and cooperation is vital. 

Unloading: first buyers and verified weights
Landings are also carried out by reefers, with the difference that whereas fishing vessels land their own catch, reefers land catch from, usually multiple, other fishing vessels. Landings by reefer are more complex than those of fishing vessels: reefers land the catches of individual fishing vessels sequentially, and the operations take much longer. Reefers must be able to separate the catches of individual fishing vessels in their holds. 

In regular fishing vessel landings, port state inspectors ensure that authorization to land fish is only given if they are confident that the fishing operations were legal. In any case authorization should not be granted before all paperwork has been received and processed. The same applies to reefers, with the difference that the process is more complex, and that more paperwork is submitted. Each fishing vessel submits catch certificates and other documents and the verification take more time. Robust verification processes must work back beyond the reefer to the fishing vessels and their activities in the trip associated with the catch that is being carried.
If there is no suspicion that an attempt is being made to land IUU fish, there are two things to be overseen by port state authorities: i) the actual weights of each species and product landed must be verified; and ii) the buyer(s) of the products must be identified. This can be a complex and varied process depending on the next intended destination of the catch.

Establishing actual and verified weights landed involves recording the weights “on landing site” or “off landing site” in locations such as cold stores or processing establishments. This is the first occasion when accurate actual weights can be verified by species and product type. Normally, fishing vessel crews and buyers’ agents work together to establish the weights, because payments for products received are based on the weights thus established. The presence of officials is essential to avoid laundering during this process and to verify that the correct weights enter the supply chain.

If road transport is involved from port to factory, the risk of laundering in transit must be assessed. Assurances are often provided in the form of padlocked and sealed trucks, and/or of truck weights being recorded as they leave the port and as they enter factories.
Final weights may be established in port directly after landing, but final grading of bulk products and their final weights may only be established at factories buying the product, which may be located at considerable distances from ports. Landings can be made into trucks, containers or dockside bins and transferred immediately to in-port warehouses; a single landing may involve a mix of these. 

Port state authorities must be able to oversee single landings, know the means of transport and storage intended to be used, and sum all transactions to their full landed equivalent. This is to establish confidence that no product has been mixed or been made to “disappear” in the process. In busy ports this is a major challenge requiring sound planning, reporting and oversight.

Most current CDS do not provide for the establishment, recording and counter validation of verified weights. But this is important in other fisheries such as tuna purse seine operations: bulk tuna of different species is landed and estimates of species mix and volume are provided by vessel masters and validated by flag states. But the weights are almost always under-estimated, and the estimated species mix is often wrong. It follows that a factory buying a full landing without adjusting the certificate for verified weights will be “short of catch certificate” in respect of the entire volume acquired and will not be able to export all of it legally.

With increasing pressure on WCPO Tuna stocks, there are stronger controls being developed in the fisheries to ensure that the stocks, and catches taken, are managed sustainably. As this develops this is likely to lead to further increased species-specific controls that can provide incentives for species misreporting. The fact that the final weights and species composition breakdown may not be available until several weeks after the completion of the fishing trip presents a weakness that can lead to IUU product being landed. It is therefore vital that there is a strong link and supported processes to associate those final weights back to the fishing vessel record.

Unloading: laying the foundation for traceability
Establishing the accuracy of verified weights of landed catch is critical in a CDS: it is one of two data groups that constitute the initial KDEs of the land-based and country-level traceability of fisheries products, which acts in support of CDS but is not provided by the CDS itself.
The second set of KDEs supporting traceability consists of the data identifying the first buyer. As can commonly occur there may also be several buyers and this will constitute the first split in the supply chain. Ideally the amount bought by each buyer and the buyer’s identity are recorded on the catch certificate passed to the buyer with CDS-covered products.

Science and biological sampling interactions with PSM
Port sampling is primarily a scientific tool that captures size and species composition of the unloaded catch (target and landed bycatch) that is then used in regional stock assessment work. Just the same as port state measures and port inspection offer the most cost-effective and expedient tool to ensuring illegal catch does not enter the market, port sampling offers the most convenient and cost-effective method to obtain large quantities of individual size data (when compared with observer data obtained at sea).  However, port sampling can also provide information to validate logsheets and other catch records completed by the vessel to ensure the accuracy of vessel recording by providing an independent verification of the data provided by the vessel. 

However, in order for this to be effective, it is imperative that the port sampling is carried out by designated and trained personnel and that they are embedded and coordinated within the broader port based other processes (such as inspections, authorisations). This, therefore, becomes a balance between maximizing the scientific benefits that it provides through regionally coordinated targeting for maximum scientific benefit and the MCS benefits through targeting more intensive examination of higher risk vessels. It is imperative that the port based sampling and monitoring is strongly linked, not only nationally, but also regionally to SPC to ensure effective targeting for managing the resource.

There are several port based requirements that are needed in order to maximise the effectiveness of the port based monitoring and port sampling, such as it is vital that harvest rules are developed to ensure that species are landed in a measurable and identifiable state. Without this both the scientific and MCS benefits of port monitoring and port sampling are diminished.

Furthermore, the coordination in between the prior notification and vessel arrival scheduling responsibilities with samplers is vital, not only from the better use of the already stretched resources of the fishery administrations but as well for minimizing the potential burden on industry operators.