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Landing Obligation: No Solution So Far to Choke Problem
The full implementation of the landing obligation – the requirement to land all quota species – is less than nine months away but there is no sign yet that the problem of choke stocks has been resolved. This is the problem faced in mixed fisheries under the landing obligation when exhaustion of quota in one (possibly minor) species will lead to the closure of the fishery as a whole with fleets tied up for the rest of the year. The vessel, member state, or fleets concerned face a double bind: they are not allowed to retain on board the species concerned but neither are they allowed to return it to the sea, unless a specific exemption has been permitted. Chokes could, in theory, halt some fisheries as early as February each year
Selectivity and Chokes
The four-year phasing-in period after the landing obligation was adopted as part of the 2013 CFP reform, has mainly been used in an increasingly frantic search for solutions to the choke problem. A lot of effort has gone into developing and trialling more selective gears but the results are variable depending on the technical and economic problems confronted by each part of the fleet. It is generally recognised, at least within the industry, member states and scientific community, that in many demersal mixed fisheries, gear selectivity is not currently at a level sufficient to solve the choke issue in all fisheries. Without political intervention, fleets will face tie ups, possible very early in the year, with extreme social and economic consequences for fishing businesses and crews.
Following the advent of regionalisation in the Common Fisheries Policy, a heavy responsibility has been placed on member states, working cooperatively in regional groups, to find solutions. The joint recommendations, submitted each year by the regional groups to the Commission, for adoption as delegated acts, specify the high survival and de minimis exemptions from the landing obligation have kept the fleets fishing during the phase-in period. A lot of effort has gone into working with the advisory councils in identifying in which fisheries chokes are likely to occur and the design of such exemptions. Phasing has also been used to avoid applying the landing obligation to the trickier species and fisheries, so that something like a big-bang is anticipated in 2019.
The member states have already made it clear to the Commission that their joint recommendation for 2019, to be finalised by the end of May 2018, may mitigate but will not resolve the choke problem. Additional interventions will be required.
Following a consultative meeting in Brussels, last November, the Commission is now fully aware of the choke issue’s potential to cause chaos when the landing obligation comes fully into force on 1st January next year. Although the Commission’s formal position remains that member states haven’t tried yet tried everything in the toolbox to avoid chokes, within the Commission, a taskforce has been established to address the issue and examine all options.
The Commission’s proposal for the annual TACs and Quotas Regulation for fishing opportunities in 2019, provides the next level of opportunity to deal potential chokes. Where a multi-annual plan is in place (Baltic and North Sea) a number of new tools are available:
⦁ Use of the full scope of MSY ranges to set Total Allowable Catches for individual target species to mitigate the risk of choke
⦁ Managing the mortality of bycatch species in mixed fisheries in flexible ways not necessarily through the application of TACS; removing TAC status automatically removes the species from the landing obligation
The Commission has already displayed an ability to act decisively, when it in 2015, made the proposal to remove TAC status for Dab, which presented a major choke threat. A scientific exercise to obtain a comprehensive analysis to identify those species that would best be managed by means other than TAC is already under way.
The Commission has also been increasingly explicit recently in spelling out that managing fisheries at maximum sustainable yield is an economic objective that will not be achieved by allowing exhaustion of quota of a minor bycatch species to choke a whole fishery. There is now also a recognition that it is simply not realistic to manage all species in a dynamic marine environment at MSY simultaneously.
Temporarily removing TAC status, with appropriate safeguards, or including interim exemptions from the landing obligation, may also within the Commission’s thinking for the December Council.
Chokes have been allocated to four different categories:
1. Those that apply to a number of member states at sea-basin level where, even after quota uplifts there will be insufficient quota to cover catches
2. Those that only affect only a few member states, and could theoretically, be resolved by moving surplus quota between member states
3. Those that could theoretically be resolved within an individual member state
4. A final category where the issue is not shortage of quota but the sheer bulk of unwanted catch that would have to be taken ashore, making the trip unviable.
The work within the regional groups have so far concentrated on the first category: when there is insufficient quota in the system to mitigate chokes. Celtic Sea haddock and Irish Sea whiting are two prime examples. The value of whiting landed in the UK from the Irish Sea amounts to £50,000. The value of the nephrops (prawn) landed and potentially threatened by a choke on whiting amounts to £25 million.
The idea behind quota uplifts is to cover the catches of unwanted fish previously discarded that will now have to be landed. A problem arises when the quota is directed away from the fleets where the discard problem resides. Quota uplifts are allocated according to the relative stability allocation keys. This is likely to intensify the problem in those chokes caused by quota shortage, when full implementation of the landing obligation arrives in January, unless a solution to misdirected uplift can be found.
For example, the UK’s share of Channel cod is 9%. The main discard problem in this fishery is caused by quota shortage in the English fleet. However, the bulk of the uplift will go to France which holds 84% of the quota share. Unless there is a mechanism to transfer the quota to where it is needed – the UK – a choke will result, as day follows night. Quota shares, swaps and transfers already take place on a large scale but generally depend on currency – holding quota which is both available and the other party wants. Forced redistribution of quota is fraught with difficulties but so far there seems to be little no discussion how this problem will be resolved – and time is running out.
Root Problems and Co-decision
It is widely acknowledged (except amongst the perpetrators) that the way the landing obligation was legislated for in article 15 of the Common Fisheries Policy, lies at the heart of the difficulties in implementing the new regime. Revisiting the CFP would involve a severe loss of face for many involved in that fiasco, including the existing European Parliament and those who which jumped on the bandwagon to advocate the landing obligation in the form that it currently takes. For these reasons, it is unlikely that the CFP legislation will get the overhaul that it needs to make it fit for purpose, at least until a new European Parliament is elected.
That Parliament will not, of course, contain British MPs and Brexit opens a whole plethora of additional questions about how discard policy will be implemented in the EU27 and in the UK. UK ministers have said that post-Brexit, they wish to retain the principle of a discard ban but have also said that they are open to changes that would make it workable.
Enforcement and Consent
Implementing the landings obligation represents a major enforcement challenge, not least because it shifts the focus of monitoring and control from the point of landing to the activity of many thousands of individual units widely distributed across the seas.
On sea, as on land, effective enforcement requires a modicum of consent between the regulators and the regulated as the basis for a culture of compliance. A set of rules that make sense, are rational and just and, at the very least, are not contradictory is a precondition for that level of consent. We don’t so far have those preconditions and the choke issue presents a major risk both to the viability of the fleets and the coherence and effectiveness of the enforcement regime. Most fishermen recognise the need for an effective discard policy to minimise unwanted mortality and waste. The challenge for fisheries managers, enforcement authorities and fishing vessel operators, is how to achieve a practical and workable approach to minimising discards in the context of the current misconceived and poorly thought-through legislation.
Dealing with the choke issue is the first and most important hurdle and time is running out.