Foreign crew members reportedly working in slave-like conditions for monthly wages as low as $350 would not have found their way onto Hawaii’s longline fishing boats without an exemption carved into the law almost 30 years ago, according to longtime industry leaders, federal officials and government records.

Today, almost all the vessels in the longline fleet have entirely foreign crews.

It wasn’t always that way.

As the Cold War was coming to an end in the late 1980s, there was a push to “Americanize” the country’s fishing fleets by instituting requirements similar to those imposed under the Jones Act on vessels engaged in coastwise trade — namely, that U.S.-flagged ships be built in the U.S. and crewed by U.S. citizens.

Congress passed a bipartisan bill to that effect, and President Ronald Reagan signed it in 1988 as the Commercial Fishing Industry Vessel Anti-Reflagging Act.

But the legislation exempted commercial fishermen fishing for highly migratory species, such as tuna and swordfish, from the law’s requirement that U.S. citizens comprise at least 75 percent of each crew.

Jim Cook of the Hawaii Longline Association says the industry is cracking down on reports of labor abuse with foreign crew.

Jim Cook of the Hawaii Longline Association says the industry is cracking down on reports of labor abuse with foreign crew.

Nathan Eagle/Civil Beat

At about the same time, the longline industry — then comprised of just a few dozen vessels — and more established purse seiners were leaving the West Coast to set up shop in Hawaii and Pacific Island territories.

They left because of depleted stocks and, in the case of purse seiners, pressure to stop killing so many dolphins.

The purse seiners were setting their huge nets, up to 500 yards deep, around schools of tuna near pods of dolphins. It created a national controversy that led to new restrictions and “dolphin-safe” tuna.

The longline boats, which catch fish by extending miles of line with thousands of hooks, initially remained strictly crewed by U.S. citizens. This changed as the fleet grew and it became harder to find local residents willing to work on the boats. Fuel prices also soared after Iraq invaded Kuwait in 1990, adding to operational costs.

This spurred the longliners to take advantage of the foreign-crew exemption that had been pushed by members of Congress from the West Coast who were looking after the purse seiners’ interests, said Jim Cook, who co-owns several longline fishing vessels, a marine supply store and fish restaurant at Pier 38 in Honolulu.

Port of Honolulu fishing boats1. 23 may 2016.

Longline fishing boats at the Port of Honolulu used to have strictly U.S. crews but evolved over time to employ predominantly foreign crew members.

Cory Lum/Civil Beat

“It slowly infiltrated our fleet,” he said.

The longline industry now includes roughly 140 vessels, nearly all of which are ported in Honolulu, and most have entirely foreign crews, according to industry leaders and federal officials.

Legal Mire

Cook has condemned the labor abuses that the Associated Press described in its Sept. 8 report and vowed to crack down on the system that enabled it.

The exemption is what got foreign crew members aboard those boats, but it’s a mix of other federal laws, rules and policies that allows the owners to pay such low wages and keep them on board while in port.

A temporary worker or visitor visa would be the normal route for a foreign citizen to come ashore. But the State Department’s Foreign Affairs Manual says these fishing crew members are ineligible, in part because the boats are U.S.-owned, so they need immigrant visas.

But the Department of Homeland Security, which has been cracking down on foreigners entering the country since the 9/11 attacks in 2001, won’t provide immigrant visas since the crew members aren’t coming to live in Hawaii.

Washington DC Capitol building east side. 7 june 2016

Members of Hawaii’s congressional delegation say they are working to find a solution to the labor concerns.

Cory Lum/Civil Beat

Then there’s the Immigration and Nationality Act, which requires boat owners and captains to keep foreign crew members on board their ships if they don’t have visas or other necessary documents to come ashore.

Hawaii’s congressional delegation and state lawmakers say they are investigating ways to improve the working conditions for foreign crew members.

State Rep. Kaniela Ing has asked Hawaii Attorney General Doug Chin for a legal opinion on the alleged unfair labor practices. He said there may be a solution the Legislature can implement since the vessel operators are licensed by the state.

U.S. Sens. Brian Schatz and Mazie Hirono, along with U.S. Rep. Tulsi Gabbard, have said they are disturbed by the media reports about the abuse and are committed to finding solutions. They are exploring options under existing laws and authorities of the Coast Guard and the departments of Justice, Labor and Homeland Security.

Conditions Vary

Conditions can differ dramatically for crew members working on a longline vessel compared to those in the purse seine industry, which is more than five times bigger.

The longliners generally operate on roughly 70-foot boats with crews of four or five people. They target bigeye tuna for sashimi markets and other highly migratory species like swordfish and marlins.

The purse seiners, who now operate mostly out of American Samoa, go out with a crew of up to two dozen people in boats more than 200 feet long in search of skipjack and yellowfin tuna for canning. They also catch bigeye tuna, but usually juveniles, not the adults that the longliners want.

Two longline fishing vessels are ported in Honolulu.

Two longline fishing vessels in Honolulu.

Nathan Eagle/Civil Beat

On the smaller longline boats, the fishermen may have to defecate in a bucket and urinate off the side for lack of a better option, whereas the larger purse seine vessels have bathroom facilities.

So even though a foreign crew member aboard a U.S. purse seine ship won’t be able to go ashore while ported in American Samoa, the conditions are different.

Cook helped form a task force this month that’s developing a standardized crew contract that incorporates international norms to address forced labor, and he said an expert on modern-day slavery was hired to advise the longline industry.

He has said the “bad actors” will be weeded out, and emphasizes the importance of the roughly $100 million longline industry to Hawaii.

Cook is also a past chair of the Western Pacific Regional Fishery Management Council, or Wespac, a 16-member group that is tasked with advising the National Marine Fisheries Service on how to minimize bycatch, protect habitat and prevent overfishing in nearly 1.5 million square miles of ocean.

He said that in general, he is OK with using the exemption that allows foreign crew members.

‘Further Americanization’

In 1998, a congressional oversight committee reviewed the Commercial Fishing Industry Vessel Anti-Reflagging Act.

Reps. Frank Pallone and Jim Saxton of New Jersey, among others, brought up the law’s broader purpose of Americanizing the U.S. fleets.

“I believe that U.S. flagged vessels should be primarily U.S. owned,” Pallone said in written transcripts of the hearing. “The American citizens, not foreign interests, should be the ones to catch fish in our waters. And we should ensure that our important fishery resources are adequately protected for the current and future generations.”

Workers move fish onto plastic pallets then iced and placed onto floor for auction start. 16 dec 2015. photograph Cory Lum/Civil Beat

Workers move fish onto pallets at the Honolulu Fish Auction last December.

Cory Lum/Civil Beat

Saxton said during the hearing that the Magnuson-Stevens Fishery Conservation and Management Act had achieved the goal of eliminating foreign fishing in the exclusive economic zone out to 200 miles from U.S. shores and developing domestic fisheries.

“In addition to this largely successful legislation, Congress has taken other steps to foster further Americanization of the fleet,” he said at the time, referring to the Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987.

“This legislation created a new ownership standard, required that vessels engaged in the U.S. fishery be built in the United States, and required that specific manning requirements by American crews be maintained,” Saxton said.

The committee mentioned the exemption for those fishing for highly migratory species but did not debate it.

Inouye’s Role

The late U.S. Sen. Daniel Inouye of Hawaii sat on the Committee on Commerce, Science and Transportation when the bill containing the exemption was moving through Congress in the late-1980s. Other committee members included Sens. Al Gore, Ted Stevens, John Kerry, John McCain and John Rockefeller.

But Inouye’s role appears to have been limited. The Congressional Record contains no mention of his name when an amendment containing the exemption was taken up in the Senate, and he wasn’t a co-sponsor of the bill.

The late U.S. Sen. Daniel Inouye, seen here in 2011, advocated for the commercial fishermen during his career but wasn't involved with the foreign crew exemption.

The late U.S. Sen. Daniel Inouye advocated for Hawaii’s commercial fishermen during his decades-long career, but wasn’t heavily involved with the foreign crew exemption in the late-1980s.

Civil Beat

Those active in the longline industry at the time acknowledge his involvement with that particular issue was limited, but recognized his influence in helping the industry in other matters over his decades-long career.

“There wasn’t any collusion between Sen. Inouye and the industry to get that act,” Cook said. “We didn’t know anything about it.”

Inouye was involved as recently as 2011, a year before his death, in helping the Hawaii longline industry with issues concerning foreign crew members.

In a letter to U.S. Customs and Border Protection Commissioner Alan Bersin, Inouye asked for the agency to use its “discretionary authority to grant limited parole to nonimmigrant crew members to enter the United States temporarily” for crew exchanges.

“The traditional nonimmigrant crewman visa is not available for these particular crewmembers because of an overly broad limitation in the current law,” Inouye said, noting that the agency had done so in the past for cruise ships and launch vessels.

Inouye said crews were at times being swapped out in dangerous conditions at sea or that the vessels were having to go to foreign countries hundreds of miles out of the way to obtain or exchange crew members.

The law lets foreign crew members fly out of the country — Honolulu International Airport, in the case of the longliners — but not fly into it.

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