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The EU Landing Obligation: Contingency Planning for Chokes Must Begin Now
December Council. Despite a four-year phase-in, it seems highly unlikely that the Council of Ministers, which begins today, 17th December, will resolve all the outstanding problems associated with the implementation of the landing obligation.
Legislative Design Faults
We can expect that some progress will be made over the next three days but a widespread recognition has built over the phase-in that the landing obligation, adopted as part of the 2013 reform of the CFP, is a deeply flawed piece of legislation. It is also clear that there are there are no easy solutions at hand:
- The problem of chokes in mixed fisheries (where the exhaustion of one quota will preclude a vessel from catching all its other quotas) is by far the problem with the most serious far-reaching consequences
- There remain conflicts with other CFP regulations which either contradict, or are at least not consistent with, the requirements of the landing obligation. These include:
- The EU technical conservation regulation, currently under revision but so far stuck in limbo between the EU Parliament, the Commission and the member states
- The EU control regulation is also undergoing revision which will take around two years
- The absence of a multi-annual plan for Western Waters which could help mitigate chokes by allowing quotas to be set within a range of fishing mortalities consistent with maximum sustainable yield
- Relative Stability, the EU formula for distributing quota between member states, means that what quota there is, is frequently in the wrong place to deal with chokes. It is not known whether the system for quota swaps and transfers will be adequate to the task, given that fishing groups and member states are likely to want to hold onto quota to deal with their own domestic chokes
- The 2020 deadline for all stocks to be managed at MSY is both biologically unachievable (because of natural variability) and a self-imposed constraint that will intensify the choke problem in some fisheries
- The means to effectively monitor and enforce the landing obligation are simply not there because the new policy was adopted with inadequate preparation
- Minimal attempt has been made to prepare the fishing industry for the major change ahead through comprehensive guidance, not least because the rules are still being constructed, a fortnight before they are due to come into force
Against, this background of legislative confusion, it is no surprise that many in the fishing industry have adopted a wait and see attitude.
No Magic Wand
Despite its design flaws, because the landing obligation is welded into the basic CFP Regulation, there is little prospect that it could be revisited before the next CFP reform in 2023.
The realisation that the full implementation of the landing obligation “presents serious challenges” is now widely shared amongst fisheries administrators, enforcement authorities, and throughout the fishing industry and throughout the supply chain. All those concerned with the practical implementation of the policy confront the difficult reality that there is no magic wand and that we are about to enter a period of painful and complex adjustment which carries serious risks to fishing businesses, crews and established fishing patterns. Also under threat, are the scientific models which inform stock assessments. These require accurate data and depend on looking backwards to predict forward. This knowledge provides the basis for the sustainable management of our fish stock and anything that undermines its reliability, undermines our ability to manage our fisheries effectively.
In recent weeks, senior figures in fisheries management have described the choke problem as “intractable”, the landing obligation as “unenforceable”, and full compliance with the landing obligation as indivisible from choke risks. The risks are now clearly recognised but solutions are only partially in place.
Commitment to a Workable Discard Ban
Thankfully, despite the cluster of unresolved issues, we detect a maturity and level-headedness within the fishing industry and amongst decision-makers about finding a way forward.
Constructive discussions have been held involving government, fishing organisations, processors and retailers. These talks have provided a common understanding of the issues. There is a commitment and sense of joint responsibility to work towards a workable version of the landing obligation. The NFFO and others have recently given evidence to a House of Lords enquiry into the issues associated with the implementation of the landing obligation. The Committee’s report is likely to bring the issues into stark relief, and hopefully will point to ways in which discards policies have been successfully implemented in other countries.
Period of Adjustment
The magnitude of change represented by the landing obligation would require a period of adjustment, even if the legislators had delivered a coherent and consistent set of rules and prepared the ground properly. The fact that they didn’t, particularly in the failure to provide adequate tools to deal with chokes in mixed fisheries, ensures that the period of adjustment will be more turbulent than would otherwise have been the case.
A great deal is at stake. Unless we move carefully, livelihoods and the progress that we have made in putting our fisheries on a sustainable footing over the last two decades are now jeopardised.
Against this background, the NFFO has called on ministers to begin contingency planning. Chokes will be difficult to predict with accuracy but tying vessels or fleets to the wall when they have significant quotas left is not a politically, ethically, or socially acceptable option. What will happen then?
It will also be important to guard against unintended consequences, such as disruptive displacement effects, as individual vessels, or fleets, seek to avoid the consequences of chokes.
All this requires contingency planning, with a strong dialogue between the fishing industry, fisheries administrators, control authorities and key players in the supply chain.
The full implementation of the landing obligation takes place against the background of the UK’s departure from the EU. If a way is found through the current political turmoil to a withdrawal agreement, the EU landing obligation would be part of the CFP rules that would continue to apply during any transition period. In those circumstances, the UK’s ideas for mitigating choke risks (outlined in the Fisheries White Paper and legislated for in the Fisheries Bill) would have to wait on the sideline. In the case of a no-deal scenario, the UK would become an independent coastal state from 29th March and immediately have more flexibility to vary its approach, although within the context of a legal obligation to cooperate in the management of shared stocks, and against the background of an abrupt rupture with the EU, which would carry its own consequences.
Having recognised and acknowledged the profound problems generated by the landing obligation, the immediate priority has to be to prepare to intervene to address the consequences of this flawed legislation as they arise.