Aker BioMarine krill objection: certifier asked to reconsider its scoring in light of additional research

An Independent Adjudicator has asked third-party certifier Moody Marine Ltd to consider the information of an additional report in its scoring of 5 of the 31 performance indicators used to assess the Aker BioMarine Antarctic krill fishery. The decision follows a 13-month scientific assessment of the fishery by Moody Marine, and a 4 month review of an objection to their finding that the fishery meets the Marine Stewardship Council (MSC) standard. The Independent Adjudicator, Mr Eldon V.C. Greenberg, found that it was a "serious procedural error" for the certifier not to have taken into account a new risk assessment prepared by Watters, et al (2009)[1], published near the end of the assessment process, reports www.megafishnet.com with reference to MSC.

In reviewing the grounds for objection the Mr Greenberg, noted: "‘...since it is impossible to know precisely how the certification body [certifier] would deal with Watters 2009...,I believe the best course is that there be a limited remand to the certification body to consider Watters 2009 ..."
Certifier's decision upheld in seven places

The objection included challenges to 12 of the 31 performance indicators used to score the fishery. Mr Greenberg has upheld Moody Marine's decision in respect of 7 of the 12 indicators challenged, finding that the certifier "...did not make a mistake, did not fail to consider material information, and did not act arbitrarily or unreasonably."  In respect of the remaining 5 indicators challenged, the Independent Adjudicator now requires Moody Marine to review their scoring following consideration of the Watters (2009) research.

On the other grounds for objection, Mr Greenberg found that Moody Marine satisfied the MSC's procedural requirements by explicitly addressing comments of peer reviewers and did review their report in light of stakeholder comments.
Next steps

In accordance with the MSC Objections Procedure, this matter is now remanded to the certifier (Moody Marine Ltd) to consider Watters (2009) and its relationship to the scoring of the 5 performance indicators. Moody Marine has 10 day to issue a response in relation to the scoring and give reasons for its decision.

The objections process will be finalised once Mr Greenberg has considered the Moody Marine's response. If he remains unsatisfied with the response, the objection could be upheld.
The objection

The objection in the Aker BioMarine krill fishery assessment was filed on December 8th 2009 by the Antarctic and Southern Ocean Coalition (ASOC) - a global coalition of NGOs with an interest in the preservation of Antarctica -, during the formal objections period of the fishery assessment. The WWF, which is also a member of ASOC, chose not to be associated with the objection.

The opportunity to object is part of the standard process for every fishery assessment. It is international accepted best practice and a requirement by the United Nations Food and Agricultural Organization (FAO) for credible eco-labelling programmes.

The purpose of the Objections Process is not to assess the fishery against MSC standard again, but to provide for an additional independent, structured review of contested certifier decisions and to ensure that decisions on certification meet the MSC fishery Standard.
About the Aker BioMarine krill fishery

The krill fishery is managed by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), which manages all marine living resources in the Southern Ocean. Within the CCAMLR Convention, fishing is a permitted activity consistent with the conservation objective; hence it is legitimate to assess such fishing operations against the MSC standard.

For 2009/10, the Total Allowable Catch (TAC) for Area 48 was 3.47 million tonnes. However, there is a sub-limit of 620,000 tonnes (18% of the current TAC).  This limit reflects the historical maximum level of krill fishing. If 620,000 tonnes is ever harvested, further catches available under the TAC can only be taken once the overall catch is allocated to smaller spatial zones. This is to avoid ecosystem impacts through localised depletion that could negatively affect krill predators.

For the season 2007/08 the total catch was estimated at around 150,000 tonnes, representing 4% of the annual TAC established and only around 0.4% of the estimated krill resource available in Area 48.
Grounds for objection

The Independent Adjudicator summarises the grounds for objection in three sections:

A.    ASOC contends that the ‘unit of certification' must be the entire Antarctic krill fishery, not just the Aker Marine component of the fishery.
B.    ASOC argues that, in a variety of ways, the certifier has incorrectly applied the MSC's procedures in reaching its conclusion.
C.     ASOC asserts that the scores given by the certifier in relation to a number of ‘Performance Indicators' cannot be justified.

A.    The Unit of Certification
The Independent Adjudicator states that the first contention is ‘readily dealt with' as the MSC Principles state, ‘At its simplest, a single vessel could be the unit of certification.'  As he explains, the logic behind this decision flows ‘from two aspects of the certification process. First, certification is a client-driven process. The MSC does not choose who the applicant is. Second, the MSC seeks to reward good practice, encourage continuous improvement and lead by example and so would wish to certify fisheries that showed good practice even though other fisheries operating on the same fish stock(s) or ecosystem did not use these practices.'
ASOC also contends that ‘it is not so simple to separate the subject fishery from the entire fishery especially as regards Principles 2 and 3.' ASOC notes by way of example, that the issue of retained species cannot be considered in the context of Aker's operations alone, since by-catch has an ‘accumulative impact.'  The Independent Adjudicator points out that, in a Directive issued by the MSC's independent Technical Advisory Board in 2004, that Principle 2 is applied to the subject fishery only, ‘so long as the fishery as a whole is conducted in a way that does not substantially undermine the objectives of the Principle.' Similarly, Principle 3 may be relevant in the context of the entire fishery ‘where elements of Principle 3 are required to achieve Principles 1 and 2.' It was noted that no claim was made that Moody failed to follow this guidance.

B.    Procedural Objections
1.    In response to ASOC contention that the certifier did not respond ‘adequately' to peer reviews' comments, it is the judgment of the Independent Adjudicator that Moody explicitly addressed the comments of peer reviewers and made a rational judgment call  about what changes should then be incorporated in the report.
2.    In response to ASOC's claim that the certifier ‘largely ignored' stakeholder comments and did not ‘truly incorporate' them in the assessment, the Independent Adjudicator ‘was not persuaded that Moody did not conduct the requisite review of the report in light of stakeholder comments.
3.    In response to ASOC's complaint that the report contains false and misleading information, the Independent Adjudicator finds that Moody's correction of a ‘typographical error' was sufficient.
4.    In response to ASOC's objection to the failure of the certifier to take Watters 2009 into account in scoring a number of performance indicators, the Independent Adjudicator judged that it would have been appropriate for the certifier to consider this report.

C.    Objections in the Scoring of Performance Indicators.
The bulk of ASOC's Notice of Objection is devoted to challenging the scoring of 12 performance indicators. The scores of the following seven were upheld by the Independent Adjudicator (the number refers to the specific Performance Indicator):

• 1.2.3 Is relevant information collected to support the harvest strategy?
• 2.1.1 Does the fishery pose a risk of serious or irreversible harm to the retained species?
• 2.1.2 Is there a strategy in place for managing retained species?
• 2.1.3 Is information on nature and extent of retained species adequate?
• 2.3.3 Is relevant information being collected to ...support the management of the fisheries impact on Endangered, Threatened, and Protected species?
• 3.2.2 Does the fishery-specific management system include effective decision-making processes that result in measures and strategies to achieve the objectives?

The Independent Adjudicator found that the certifier should consider the recently published risk assessment by Watters, et al in reviewing the scoring of five performance indicators:

• 1.2.1 Is the harvest strategy robust and precautionary?
• 1.2.2 Are there well defined and effective harvest rules?
• 2.5.1 Does the fishery cause serious or irreversible harm to the key elements of the ecosystem structure and function?
• 2.5.2 Are there measures in place to ensure the fishery does not pose a risk of serious or irreversible harm to ecosystem structure and function?

[1] Watters, et al. (2009), "The Risk on not Deciding to Allocate the Precautionary Krill Catch Limit among SSMUs  and Allowing Uncontrolled Expansion of the Krill Fishery up to the Trigger Level."