DRAFT POSITION PAPER

10-27-04

POSITION PAPER FOR THE REVISION OF REPUBLIC ACT 8550, ALSO KNOWN AS THE PHILIPPINE FISHERIES CODE OF 1998 WHEREAS, the 1987 Philippine Constitution guarantees protection, development and conservation of inland, marine, and offshore fishery resources; protection of the rights of subsistence fishers to the preferential use of these resources; and provision of support through appropriate technology and research, adequate financial, production and marketing assistance. WHEREAS, The Philippine Fisheries Code of 1998, herein referred to as the Code, aims to achieve the goals of the fishery sector, i.e., conserve, protect and sustainably manage the countrys fishery and aquatic resources; alleviate poverty through provision of supplementary livelihood to municipal fisherfolk; improve the productivity of aquaculture within ecological limits; optimal utilization of offshore and deep-sea resources; and upgrade post-harvest technology. THEREFORE, after over five years of enactment of the Code, an assessment of the progress towards its implementation with the end view of providing future directions to the fishery sector in the country is deemed crucial and timely. We, the representatives of the academic institutions and non-government organizations actively involved in the conduct of fisheries in the Philippines, convened on 31 August to 01 September 2004 at the University of the Philippines in the Visayas, Iloilo City to review the salient provisions of the Code. Having completed our assessment, we respectfully set forth the following issues for consideration and inclusion in the revised Philippine Fisheries Code. The review process was subdivided into five areas namely, Aquaculture; Postharvest Fisheries; Fisheries Education; Fisheries Institutions; and Municipal Waters, Penalties and Enforcement of Laws. I. AQUACULTURE

The provisions on aquaculture have not yet been fully implemented despite rapid development of the aquaculture sector for the past ten (10) years. Should we intend to penetrate the international market without prejudice to the Filipino consumers and be globally competitive, we must ascertain that the aquaculture sector conforms to the international standards and the code of conduct for responsible aquaculture practice. In order to achieve this goal, the following modifications to the Code are hereby recommended: A. Section 4- Definition of Terms The definition of sea farming (no. 68) should be rephrased to the stocking of natural or hatchery-produced marine plants or animals for purposes of rearing and harvesting, but not limited to commercially-important fishes, mollusks (such as pearl and giant clam culture), including seaweeds and seagrasses . A statement on sustainability/enhancement should likewise be included to substantiate the definition.

Comment: While a statement on sustainability/enhancement would be ideal, it is not advisable to include such, because the purpose of the definition is to give a general description and not to classify whether it is sustainable or not. Does the intent of redefining the term is to exclude those practice which are not sustainable? When regulation is imposed, will the unsustainable practice be covered, while when defined it is not? What is the term to be used if it not sustainable? Although the term Fishpond Lease Agreement (FLA) has already been defined in Fisheries Administrative Order 214, Series of 2001, Sec. 1p. as a contract entered into by and between the Secretary of Agriculture and a qualified fishpond applicant for the use of public land for fishpond development purpose for a period of twenty-five (25) years, we suggest that the same definition should also appear in Section 4 of the Code and be re-defined as a legal instrument to comprise the use of foreshore land. majority of the FLAs are not located in the foreshore area, but within the areas of the brackishwater rivers (pls. refer to foreshore land definition). B. Section 45- Disposition of Public Lands for Fishery Purposes This section is in conflict with Section 53 (Grant of Privileges for Operations of Fish Pens, Cages, Corrals/Traps and Similar Structures), thus, the last sentence of Section 45 which states Provided, finally, That two (2) years after the approval of this Act, no fish pen or fish cages or fish traps shall be allowed in lakes should be deleted. The apparent overlapping mandates of the Department of Agriculture (DA) and Department of Environment and Natural Resources (DENR) on fishpond, foreshore land and mangrove areas have to be streamlined. while the gray area is in Sec. 45, it is not within the authority of the Department (DA) to declare as reservation or the like, any portion of the public domain including those classified as alienable for fishpond purposes. Section 53 provides for the exemption on the prohibition stated in Section 45 and does not necessarily contradict. C. Section 46- Lease of Fishponds Section 46b should be rephrased to The lease shall be for a period of twenty-five (25) years and may be renewed for another twenty-five (25) years: Provided, That in the case of the death of the lessee, his spouse and/or children, as his heirs, shall have preemptive rights to the unexpired term of his Fishpond Lease Agreement subject to the same terms and conditions provided herein, provided that the said heirs are qualified. The application process for FLAs has to be streamlined. The provision on the establishment of buffer zones should not be ignored instead, strict enforcement and monitoring be conducted. D. Section 48- Incentives and Disincentives for Sustainable Aquaculture While disincentive is considered favorable, we strongly support the principle of providing more incentives to individuals or groups engaged in sustainable management practices, especially to those who venture in the use of new technologies or nontraditional species. Incentives can be in the form of access to loan/soft financing, tax rebate/tax holiday, or even allowing the use of FLAs as collateral for loans. E. Section 50- Absentee Fishpond Lease Agreement Holders This section is hereby revised per Republic Act No. 9225 known as the Citizenship Retention and Re-acquisition Act of 2003, which declares that all Philippine citizens of another country shall be deemed not to have lost their Philippine
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citizenship under the conditions of this Act . Thus, holder of fishpond lease agreement/s with dual citizenship should be allowed provided however, that the person is involved in the operation and management of fishponds. It is further recommended to monitor and control the sub-leasing of FLAs. F. Section 51- License to Operate Fish Pens, Fish Cages, Fish Traps and Other Structures for the Culture of Fish and Other Fishery Products This section directs the local government units and the Fisheries and Aquatic Resource Management Councils (FARMCs) to designate and establish zones within their municipal waters. However, it was difficult for the municipalities to establish and formulate zoning plans because of the lack of mechanism or approach to assist or guide them. We recognize that such difficulty also emanates from insufficient information on the carrying capacity of the area. While some parameters were identified especially in lakes and rivers per Section 13 of Fisheries Administrative Order No. 214, Series of 2001 (Code of Practice for Aquaculture), the progress towards determination of carrying capacity and the issue of ten percent (10%) water surface area limit for aquaculture activities in the countrys municipal waters (Article III, Section 51) has been very slow. G. Section 53- Grant of Privileges for Operation of Fish Pens, Cages, Corrals/Traps and Similar Structures This section is upheld provided that outside investors may be allowed in cooperation with local communities. H. Section 54- Insurance for Fishponds, Fish Cages and Fish Pens The government should provide budgetary allocation for the insurance of fishponds, fish cages and fish pens because this provision has been weakly enforced or supported. I. Section 56- Non-obstruction to Defined Migration Paths The prohibition in this section as stipulated in Section 3 of Fisheries Administrative Order 217, Series of 2001 should be expanded to include not only up to one (1) kilometer seaward and one (1) kilometer upward but the whole migratory paths of fish. J. Section 57- Registration of Fish Hatcheries and Private Fishponds, etc. We support the accreditation of satellite hatcheries as well as provision of assistance to hatchery operators in terms of information drive, linkages and marketing assistance. II. POST-HARVEST FISHERIES

Responsible practice of fisheries post-harvest and marketing involves optimum utilization of the catch through application of appropriate and sustainable technologies; ensuring the quality and safety of fish and fishery products while realizing maximum profit to the processors. Concerns, however, were raised on how to improve the state of the post-harvest fisheries in the country. Present issues merit serious considerations and these include non-standardized processing methodology thereby producing inconsistent, non-competitive and unsafe products; use of inappropriate packaging materials, noncompliance to labeling materials, inadequate infrastructure facilities, proliferation of fish processing establishments with no License to Operate (LTO) or permit from local
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government units; insufficient knowledge on quality standards and quality system; rejection of Philippine products in the export market due to inability to meet mandatory requirements of importing countries, lack of communication between importing and exporting countries, and requirements are difficult to comply with. A. Section 58- Comprehensive Post-harvest and Ancillary Industry Plan (CPHAIP) In the review of the Medium Term Development Plan, significant inputs from stakeholders must be considered. There should be mechanism to ensure more active participation from concerned agencies, state colleges and universities (SCUs), nongovernment organizations (NGOs) and the private sector in the preparation of the Comprehensive Post-harvest and Ancillary Industry Plan (CPHAIP). CPHAIP must include, among others, provision on proper post-harvest handling at source, transport, processing and marketing. These activities should be in accordance with the Code of Conduct for Responsible Fisheries. B. Section 59- Establishment of Post-Harvest Facilities for Fishing Communities The draft Guidelines for the Establishment of Post-Harvest Facilities should be reviewed in consultation with the experts on Post-Harvest Facilities and personnel from the Philippine Fisheries Development Authority (PFDA) and the Bureau of Fisheries and Aquatic Resources (BFAR). We strongly recommend that a series of public hearings be conducted to ascertain the acceptability of these guidelines at the municipal level. C. Section 60- Registration and Licensing of all Post-Harvest Facilities We recognize that there is an urgent need to harmonize fish inspection system in the country. The national government however, may find this difficult due to lack of expertise on fish inspection and accreditation of fish processing establishments. This problem can be resolved either by increasing manpower or drawing experts from other agencies and state colleges and universities. The process of securing a license to operate (LTO) for all Post-Harvest facilities may be streamlined should the issuance of said license is through BFAR and not the Bureau of Food and Drugs (BFAD). D. Section 61- Importation and Exportation of Fishery Products We propose that Fisheries Administrative Orders defining the guidelines for importation and exportation of other fish and fishery products (e.g. canned, dried, smoke, fermented, etc.) be issued. Although two Fisheries Administrative Orders (FAOs) were released namely, FAO 195 Series of 1999 and FAO 210, Series of 2001 on the importation and exportation of fishery products, respectively, they only include fresh, chilled and frozen fish and fishery/aquatic products. E. Section 62- Instruments Grades/Standards of Weights and Measures, and Quality

While FAO 211, Series of 2001 was issued for shellfish, no Fisheries Administrative Order was written for fish and fishery products. Product standards for both export and local markets should be harmonized; there should be a provision to regulate the quality and safety of products at the local market. The creation of a National Team of experts on CODEX for fishery products with representations from BFAR and other government agencies, state colleges and universities, and private sector would facilitate the formulation and reinforce the implementation of standards. F. Section 67- Fisheries Inspection and Quarantine Service

We propose that a Fisheries Administrative Order be issued that would allow accreditation of laboratories in state colleges and universities and other government agencies to conduct laboratory examination of fish and fishery products. Budgetary allocation should be increased to facilitate upgrading and acquisition of laboratory equipment. III. FISHERIES EDUCATION

The fisheries education in the country has undergone substantial transformation with the implementation of the Code. Should our goal be the attainment of academic excellence in the field of fisheries, we have to comprehensively examine the quality of fisheries education in schools and state colleges in the country. However, some provisions pertaining to fisheries education have not been adequately implemented and addressed in the Code. For example, the National Agriculture and Fisheries Education System (NAFES) created by the Commission on Higher Education (CHED) could not be implemented for lack of funds. Whereas, the poor performance of fisheries graduates in the first Fisheries Licensure Examination may be attributed to substandard fisheries education. Thus, the following recommendations deserve attention when revising the Code: A. Section 115- Professionalization of Fisheries Graduates Progress with respect to the professionalization of fisheries has been partly achieved. For example, the Fisheries Board of Examiners was created per PRC Resolution No. 2000-664 while the First Licensure Examination was completed on October 2003. As this is an initial accomplishment, professionalization of fisheries may advance further through the passage of a bill. The bill shall convert professionalization of fisheries education into law that clearly underscores the conduct of the examination and the practice of fisheries as a profession. We strongly propose the following changes and modifications: 1) The composition of the Fisheries Board of Examiners should be changed from three (3) to four (4) to include experts from the four areas of fisheries. 2) Non-B.S. Fisheries and B.S. Fisheries Education graduates may be allowed to take the Fishery Technologist Licensure Examination provided, a) They are graduates of courses related to fisheries such as Biology, Marine Biology, Microbiology, Food Technology, Food Science, Chemistry, Environmental Studies; and b) They have taken at least eighteen (18) units of fisheries courses/subjects that cover the four (4) areas of the examination. 3) Waiver of Examination may be allowed to Non-BS Fisheries/BS Fisheries Education graduates provided, a) They are graduates of courses related to fisheries such as Biology, Marine Biology, Microbiology, Food Technology, Food Science, Chemistry, Environmental Studies; b) They have at least five (5) years experience in fisheries prior to their application ; and c) They have obtained eligibility in Civil Service Commission Eligibility in Fisheries, Career Professional Eligibility or Eligibility through PD 907. 4) So as to effectively enforce the professionalization of fisheries, only licensed Fishery Technologist shall be allowed to work in fisheries-related jobs whether in the fisheries industry or the government.
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B. Section 116- Upgrading of State Fisheries Schools/Colleges Initial upgrading of schools and colleges was conducted. The Commission on Higher Education (CHED) has already revised its model curriculum for B.S. Fisheries while the Technical Education and Skills Development Authority (TESDA) established seven (7) fisheries schools. BFAR has its training centers. We recommend that AFMAs (Agriculture and Fisheries Modernization Act of 1997 or Republic Act 8435) provisions on education in agriculture and fisheries should be followed (e.g., separate fisheries from agriculture and create a Fisheries Education System (FES) (AFMA, Section 66) and separate the Board of Fisheries from the Board of Agriculture (AFMA, Section 75)). Improving the quality of fisheries education should be our immediate goal. We therefore, propose the following: 1) Reduction in the number of fisheries schools in the country and to utilize the results of licensure exams in monitoring and evaluating fisheries schools. No fisheries school shall be created nor upgraded without the endorsement of the FES. 2) Financial support should be extended for faculty-development programs (e.g., to pursue advanced degrees) and scholarship grants for students should be increased in order to attract the best and brightest students to enroll in fisheries. 3) The AFMA provisions can serve as a guideline whereby education campaign should be accomplished at all levels (e.g., elementary, secondary and tertiary levels (AFMA, Section 67), post secondary education under TESDA (AFMA, Section 68), and network of Centers of Excellence (COE) in fisheries (AFMA, Section 69)). Schools that are not designated as COE by CHED will have to reorient their programs to non-fisheries programs that are relevant to the province or region (Section 70). IV. FISHERIES INSTITUTIONS

The successful implementation of fisheries policies and regulations depends on clear and efficient institutional arrangements. Two chapters in the Code namely, Chapter III (Reconstitution of the Bureau of Fisheries and Aquatic Resources and Creation of Fisheries and Aquatic Resource Management Councils) and Chapter V (Fisheries Research and Development) constitute the coverage of our review of institutional arrangements. With respect to the organizational structure of the Bureau of Fisheries and Aquatic Resources (BFAR), we recommend the removal of the post, Undersecretary for Fisheries and Regulation, and propose that the Director of BFAR reports directly to the Secretary of the Department of Agriculture. BFAR should also carefully review its Technical Services Divisions structure and functions so as not to duplicate the functions and mandate of the National Fisheries Research and Development Institute (NFRDI). The Code implies that NFRDI will be a fund manager; but what would be the outcome should this function be transferred to BFAR which is a separate agency from NFRDI? Therefore, the flow of work and accountabilities must be clear. BFAR should also evaluate the duplication of functions between the Regional Offices and the Regional Fisheries Training Centers (RFTCs). The AFMA provisions for

the Regional Offices maybe consulted. It is also opportune to reorganize BFAR, provided that an independent body shall conduct the evaluation to eliminate or reduce biases. While there was an initiative to harmonize and streamline research activities of the Bureau of Agricultural Research (BAR), Philippine Council for Agriculture, Forestry and Natural Resources Research and Development (PCARRD), and Philippine Council for Aquatic and Marine Research and Development (PCAMRD), BFARs participation in this undertaking is vague or uncertain. A Memorandum Order should be issued to facilitate the transfer of all fisheries research activities to NFRDI in order to eliminate existing inconsistencies in the functions of the different agencies. V. MUNICIPAL WATERS, PENALTIES AND ENFORCEMENT OF LAWS

The coverage of municipal waters has been the subject of many on-going debates in the country. We raised some important issues and recommendations on the judicious utilization and management of fishery resources with emphasis on compliance with existing laws and regulations. A. Section 4- Definition of terms The term municipal waters (No. 58) should be re-defined by developing a set of criteria such as but not limited to conservation area, biological issue, capacity of fishing crafts, manageability, threats to the aquatic environment (e.g., land-based pollution). The term coastline may have several interpretations therefore, in order to avoid confusion and misinterpretation it should be defined and clarified. There are two basic arguments that have to be carefully thought about in redefining the municipal waters, i.e., whether to a) separate its utilization from management or, b) consider utilization and management as integrated. Of much greater concern now is who will be responsible in managing the offshore islands. An administrative order may be issued to this effect, specifying the methodology for offshore islands. B. Chapter VI- Prohibitions and Penalties The penalties and fines prescribed in the Code should be increased, with the provision that a sharing system with the local government unit be incorporated. As to the management of sourced funds from penalties and fines, Chapter V of Republic Act No. 9003 (Ecological Solid Waste Management Act of 2000) may be consulted. Volunteer fisheries law enforcers (e.g., Bantay Dagat) should receive adequate protection from prosecution. The local government unit shall have the authority to impose administrative sanctions and prescribe higher penalties and fines. 1. Section 86- Unauthorized Fishing or Engaging in Other Unauthorized Fisheries Activities This section should be modified to include the statement, It shall be unlawful for any person to a) fish beyond municipal waters without a license, lease or permit; b) conduct any form of fisheries activities in municipal waters without a license or permit; and c) do commercial fishing in municipal waters without a license or permit. - the propose amendments will just create more confusion rather than clarification. It is already clear on the existing provision in section 86, that a license or permit is required before a person will be allowed to engage in any fishing/fisheries activities in the country, whether inside or outside the municipal waters. The question on the

applicability or validity of license issued by specific agency of government, LGU or NGA, already lies on the jurisdiction of such issuing agency. 2. Section 87- Poaching in Philippine Waters This provision should include a statement which indicates the utilization of the fines (e.g., for fisheries research). 3. Section 88- Fishing Through Explosives, Noxious or Poisonous Substance, and/or Electricity Numbers 2 and 3 should be modified to possession and actual use of explosives, noxious substances and/or electricity. (modifying Num. 2 will render Num. 1 par. 3 ineffective. Num. 2 penalizes only those possessing and actual using, therefore, this penalty clause will not be applicable for those caught mere possessing the materials without the proof of using it.) Whereas, the word profit in Number 4 should be deleted to state Dealing in, selling, or in any manner disposing of illegally caught/gathered fisheries species. A permit system should be provided to manufacturers, dealers, and traders of chemicals and substances used in blast fishing. A study on electro-fishing should be conducted to support the issuance of new policies and regulations. (already existing and under the mandate of the PNP 4. There should be a new provision on Gear Management Scheme that will specify the list of allowable fishing gears, methods and accessories. There are experts on fishing gears from research and academic institutions who may be consulted. This will also remove the classification of fishing gears (i.e., active and passive gears) and integrate the provisions in Sections 89 (Use of Fine mesh nets), 90 (Use of Active Gear in the Municipal Waters and Bays and Other Fishery Management Areas), 92 (Ban on Muro-Ami, Other Methods and Gear Destructive to Coral Reefs and Other Marine Habitat, and 93 (Illegal Use of Superlights). 5. Section 91- Ban on Coral Exploitation and Exportation This provision should include a statement which indicates the utilization of the fines (e.g., for fisheries research). include the requirement of special permit for any research institution to possess and conduct research on corals. 6. Section 92- Ban on Muro-Ami, Other Methods and Gear Destructive to Coral Reefs and Other Marine Habitat This section should define marine habitat. 7. Section 94- Conversion of Mangroves This section should include other activities that could lead to the destruction of mangroves. These activities have to be understood and supported by policies. 8. Section 96- Fishing in Fishery Reserves, Refuge and Sanctuary This section should be modified to state It shall be unlawful to fish in fishery areas declared by the Department or local government as fishery reserves, refuge and sanctuaries. 9. Section 97- Fishing or Taking of Rare, Threatened or Endangered Species

This section should be modified to It shall be unlawful to fish, take or transport rare, threatened or endangered species as listed in the CITES and as determined by the Department. Further, there should be an Appendix listing all banned species with concomitant regulations. The degree of penalty stipulated was even stiffer compared to homicide. Thus, we propose that the amount of penalties be dependent on the number of stakeholders. should also include the word possess 10. Sections 99 (Exportation of Breeders, Spawners, Eggs, or Fry) and 100 (Importation or Exportation of Fish or Fishery Species) should be studied carefully. 11. Section 101- Violation of Catch Ceilings This section should be modified to It shall be unlawful for any person to fish in violation of catch ceilings as determined by the Department or local government 12. Section 102- Aquatic Pollution This section should harmonize with Republic Act 9275, also known as the Philippine Clean Water Act of 2004. 13. Section 103- Other Violations The provision 103b should not be limited to fishponds, fish pens and fish cages but should also include hatcheries, mariculture, or any other aquaculture activity. And 103e should be stated as It shall be unlawful to construct and operate fish corrals, traps, fish pens, fish cages, hatcheries, mariculture and other aquaculture activity without license, permit or lease. C. ADDITIONAL PROVISIONS TO BE INCORPORATED Some issues, problems and suggestions concerning the implementation of the Code of Conduct for Responsible Fishing warrant scrutiny and immediate attention and these include the following: 1. Ghost fishing 2. Anchoring in coral reefs 3. Disturbance in tidal flats, seagrass beds (e.g., gleaning areas) 4. Penalize authorities for indiscriminate issuance of licenses or permits 5. Improper disposal of unwanted catch- the issuance of permit for scientific studies must specify the limits 6. Introduction of exotic species- the short description in Section 8 of FAO 214, Series of 2001 (Introduction of Exotic and GMOs) should be expanded to include regulations of entry of exotic species within the Philippines. 7. Inspection of aquarium or tropical fish should be conducted by experts 8. Creation of Special Courts- the strategies and mechanisms to create these special courts should be decided upon by the Department of Justice (DOJ) 9. Sub-leasing of aquaculture facilities (e.g., fishpens, fishponds)- the Antidummy Law should be referred to SIGNATORIES:
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