fishing in the Philippines

Fishing operators assert protecting trade secrets in opposing gov’t monitoring

Iya Gozum

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Fishing operators assert protecting trade secrets in opposing gov’t monitoring

FISHING COMMUNITY IN ZAMBALES. A view of a fishing community in Masinloc, Zambales province, Philippines, September 26, 2023. REUTERS/Lisa Marie David

Lisa Marie David/REUTERS

(2nd UPDATE) The legal counsel of concerned fishing operators says the government’s vessel monitoring system can reveal trade secrets

MANILA, Philippines – Protection of trade secrets is one of the main reasons why commercial fishing operators resist the installation of tracking devices on their vessels, the counsel of Royale Fishing Corporation said on Tuesday, October 10, during oral arguments at the Supreme Court (SC).

The High Court held oral arguments to tackle whether a regional trial court (RTC) in Malabon City erred in declaring that the Fisheries Administrative Code (FAO) No. 266 of the Department of Agriculture’s Bureau of Fisheries and Aquatic Resources (BFAR) violated the constitutional rights of commercial fishing operators. 

FAO 266 is a policy initiative to implement a vessel monitoring system (VMS), which involves tracking devices that can monitor a vessel’s position, course, speed, and fishing activities. It also has a reporting system that stores fishery information.

The BFAR, through the Office of the Solicitor General, had filed a petition for review with the Supreme Court questioning the RTC’s decision to issue a writ of preliminary injunction applicable nationwide. 

During Tuesday’s oral arguments at the Supreme Court, Arnold Naval, the legal counsel of respondents Royale Fishing Corporation, Bonanza Fishing and Market Resources Inc, and RBL Fishing Corporation, said the time and location of galunggong fishing operations are trade secrets that could be revealed by real-time monitoring from satellite transponders.

According to Naval, galunggong or small pelagic fish is the main catch of the respondents.

Justice Maria Filomena Singh pointed out the irony of complying with manual monitoring that was being implemented before FAO 266, and then resisting real-time digital monitoring.

Through FAO 266, the BFAR required commercial fishing vessels weighing 3.1 gross tons and above to install the tracking devices.

“If you are complying manually, what is your objection now that this is being required in an electronic form?” asked Singh.

“It’s the real-time monitoring of when they will be able to catch on that particular night [and] how much,” said Naval. “That is their trade secret already.”

Naval said that unlike tuna which has migratory patterns, galunggong stays put in a certain area. Knowing where to catch them and at what particular time is critical to ensure abundant catch.

Naval added, the idea of having the operators’ trade secrets in the government’s online system is worrying, as this is “prone to be hacked.”

Tuesday’s oral arguments put into light the ongoing debate over the extent of the government’s ability to enforce monitoring measures over Philippine waters.

The Office of the Executive Secretary suspended FAO 266 earlier this year through a memorandum – to the disappointment of environmental groups and small-scale fishers. Advocates have been pushing for the implementation of VMS in light of illegal fishing and reported cases of commercial vessels’ intrusion into municipal waters.

In a press release last June, BFAR said that despite adhering to the suspension, they still support the idea behind FAO 266.

“VMM (vessel monitoring measures) can effectively help in the prevention, deterrence, and elimination of IUU (illegal, unreported, unregulated) fishing,” the agency said in the statement.

For the licenses of these fishing companies to be renewed, the government requires that commercial fishing operators submit data on their fish catch and location of fishing grounds.

Naval said they agree that the elimination of IUU would benefit fishing operators, but that the VMS does not have the capacity to curb cyanide and dynamite fishing.

“We do not think that the mandatory installation of the VMS is actually a valid measure to curb or eliminate IUUF,” said Naval.

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Meanwhile, Solicitor General Menardo Guevarra said that the FAO 266 does not hinder the respondents’ right to equal protection of the law and does not violate their right to privacy.

FAO 266 “was erroneously declared as unconstitutional,” said Guevarra.

The solicitor general spoke on behalf of the petitioners: the DA, BFAR, and the National Telecommunications Commission.

Guevarra also said the tracking devices were the more cost-effective tools, as the alternative would mean BFAR using patrol vessels to determine what commercial fishing vessels are doing out on the sea.

During the oral arguments, Guevarra illustrated what happens with the tracking devices: when a vessel encroaches upon a protected or a restricted area, an alert is automatically sent to BFAR headquarters.

But the device detects more than the location of the vessels, but “the amount of the catch, the species of fish which have been caught can be immediately transmitted to the BFAR,” said Guevarra.

This is data that is important to collect to determine “if [a] certain species is being overfished,” he added.

Vessels weighing 30 gross tons and above – which have access to high seas or rights to fish in other coastal states and/or in the Philippine exclusive economic zone – are required to have an electronic reporting system (ERS).

The system must provide BFAR with fishery information on species and volume of catch, position where fish was caught, tracking devices used, among others.

In his opening statement, Guevarra said the marine resources of the country have been steadily declining over the years. He called FAO 266 “one of the most effective tools of the government against IUU.”

“As owner of these natural resources, the State is bound to protect the nation’s marine wealth,” Guevarra said in his opening statement. –

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Iya Gozum

Iya Gozum covers the environment, agriculture, and science beats for Rappler.