SCOTTISH DISCARDS STEERING GROUP
QUOTA FLEXIBILITY IN THE CFP REGULATION
Purpose
1.
To explore quota flexibility potentially available to Member States in terms of Articles
15(8) and 15(9) of the CFP Regulation with a view to presenting a Scottish proposal to the
North Sea and Western Waters regional groups early in 2014.
General
2.
Articles 15(8) and 15(9) appear as self-standing provisions in Article 15, which deals
with the landing obligation. They are not subject to any Commission power to make
delegated acts about implementation. Nor are they bound up with Article 18 (on
regionalisation). The interpretation of these Articles appears therefore in the first instance to
be a matter for Member States’ judgement, subject of course to risks of legal challenge,
whether by the Commission or other persons.
3.
That said, we would in general regard it to be desirable that there is among the
Member States in a regional sea area a shared understanding and approach to these
possibilities that supports achievement of conservation objectives and allows for rules
among fishing fleets that are broadly consistent.
4.
This paper is not concerned with the provisions on de minimis exemptions from the
landing obligation, which are dealt with in Articles 15(4)(c) and 15(5)(c).
Article 15(8) – convertibility of quotas
5.
Article 15(8) says:
“By way of derogation from the obligation to count catches against the
relevant quotas in accordance with paragraph 1, catches of species that are
subject to the landing obligation and that are caught in excess of quotas of the
stocks in question, or catches of species in respect of which the Member State
has no quota, may be deducted from the quota of the target species provided
that they do not exceed 9 % of the quota of the target species. This provision
shall only apply where the stock of the non-target species is within safe
biological limits.”
Intention
6.
The apparent intention of this Article is to provide for circumstances where fishing
vessels catch species that they did not ‘intend’ to catch, or caught more than expected, and
in relation to which they do not have access to quota, and to then permit those vessels to
convert up to 9 per cent of their ‘target’ quota into quota for the non-target species, provided
that the non-target species is within safe biological limits.
Definition of concepts
7.
The first step in considering how the Article might be utilised is to consider the
concepts that are defined and those that are not defined, but which may be interpreted.
There are three important concepts: “safe biological limits” and “target” and “non-target”
species.
8.
Safe biological limits is defined in Article 4(1)(18), which says:
'stock within safe biological limits' means a stock with a high probability that
its estimated spawning biomass at the end of the previous year is higher than
the limit biomass reference point (Blim) and its estimated fishing mortality rate
for the previous year is less than the limit fishing mortality rate reference point
(Flim).
9.
The table at Annex A shows which stocks are likely (having regard to ICES data in
2012 advice) to have been regarded in 2013 as falling inside and outside this category, in
relation to the North Sea and the West of Scotland. Clearly, the number of stocks that do
not have at present an analytical assessment causes some difficulties for the utilisation of
this provision. This issue, and possible approaches that might be deployed to assess the
“high probability” referred to in the Article will need careful consideration.
10.
“Target” and “non-target” species are not defined. During the passage of the
legislation it was our view that these words should be deleted, because these concepts were
unlikely to be justiciable or meaningful in the mixed fisheries that the majority of our vessels
prosecute. Our view is that any attempt to draw up rules about species that might be
regarded as ‘non-target’ in the course of fishing operations for ‘target’ species is highly likely
to give rise to hugely over-complicated and illogical outputs that will be seen to be objectively
untrue in a significant number of instances.
11.
We propose therefore to consider this issue in terms of the forms and scale of
convertibility that appear to us to make sense in the fisheries we are active in and do not
jeopardise significantly the general objective of harvesting fisheries on the basis of fMSY.
12.
In light of this, we offer the following approach for discussion:

Quotas for demersal species, including Nephrops (and Ling and Tusk), be
convertible into one another, in so far as they are within safe biological limits in the
year in question and within the same or overlapping TAC areas, but not into pelagic
or deep sea species (defined for this purpose as being those in the Deep Sea TAC
and quota regulation). This approach is proposed on the grounds that any of these
species can be caught in the course of normal mixed fishery operations. Catches of
pelagic and deep sea species should be minimal;

Quotas for deep-sea species should be convertible into one another, but not into
demersal or pelagic species; and,

Quotas for pelagic species should not be convertible into one another, nor into
demersal or deep-sea species, in view of the general capability to harvest these
stocks in single species fisheries and the potential for conversion to increase
substantially the amount of demersal species available to land. The occasional
catches of pelagic in demersal fisheries, and vice versa, should be manageable
through either leasing of quota and / or the de minimis provision.
Timing of use
13.
The regulation is silent about the timing of use. We welcome this, as it allows for
flexibility: adjustments can be made in anticipation of catches; in response to them; or, as
part of an end-year reconciliation exercise.
Level of use
14.
In terms of the management level at which convertibility should be employed, Marine
Scotland considers that decisions about use are best taken by Producer Organisations, who
are closest to the management of the fisheries and fishing opportunities, within the overall
context of quota management rules (which in this case would be the UK quota management
rules, in light of the mixed membership of POs in terms of nationality). It would not be
appropriate in the UK for the Member State to undertake any action to convert quotas, as the
apportionment of quotas between Fisheries Administrations is conducted according to a
method set out in the UK Concordat on Fisheries Management. Marine Scotland would not
rule out using the conversion function prior to allocation to POs, but our preference is for
such adjustments to be made by POs on behalf of their members in the light of
circumstances as they develop each year.
Method of use
15.
Precise details of relevant quota management rules will of course require careful
consideration and consultation with POs and others, in order to make sure they deliver on
policy objectives and are as simple as can be achieved. In general, however, we would
anticipate offering to POs an option to convert up to 9 per cent of each adapted allocation in
quota stocks specified as being eligible for conversion into other quotas that the rules allow
them to be converted into. One can also anticipate further levels of detail in Marine Scotland
quota management rules in relation to proposals to convert quota more than once, or to
convert quota swapped in from another PO as one stock and then apply to convert into
another stock (and complications on these lines could suggest logic that supports the idea of
allocating the aggregate amounts available for conversion as a sea area ‘stock’ in its own
right).
16.
A broadly permissive approach on these lines does at first glance involve some risks.
It would be possible for example for a PO to convert, among a group of 5 eligible whitefish
quotas, 9 per cent of four all into tonnage for the fifth. But, while possible in theory, that
seems to us to be unlikely in practice, given the need for POs to maintain quotas in line with
fishing conditions on the grounds. That said, there could also be circumstances where
conversion biased towards one stock could assist, alongside technical selectivity and spatial
avoidance, in coping with a sudden outburst of a particular stock, which in time will be
reflected in scientific advice for an increased quota.
International aspects – level playing field and implications of swaps
17.
It would seem desirable for the Member States participating in regional EU fishery,
such as in the North Sea, to adopt a broadly common approach. Wide variations in
approach to this novel management facility could place some Member States at significant
competitive disadvantage and also place individual stocks under unwelcome pressure. It will
also be necessary in the North Sea to reach an understanding with Norway about the impact
of this facility upon catch limits for jointly managed stocks. This latter point has potential of
course to be a very significant limitation on the use of the conversion option.
18.
It will also be necessary to think through carefully the interactions, if there to be any,
between quota conversion and international swaps. If arrangements for conversion are
common amongst Member States active in a sea area, then it may be possible to permit
quota swapped in to be converted into another stock (or to increase the amount of quota
allocated as conversion quota?), but this will not be straightforward, at least not initially.
Article 15(9) – inter-annual flexibility
19.
Article 15(9) says:
For stocks subject to the landing obligation, Member States may use a
year-to-year flexibility of up to 10 % of their permitted landings. For this
purpose, a Member State may allow landing of additional quantities of the
stock that is subject to the landing obligation provided that such quantities do
not exceed 10 % of the quota allocated to that Member State. Article 105 of
Regulation (EC) No 1224/2009 shall apply.
20.
The facility to borrow quotas from the next year to fish in this year has been a well
understood and widely used aspect of the CFP quota system. The now published
Commission ‘omnibus’ proposal on technical conservation changes the existing general
threshold of 5% to 10%, across the board. Our priority, in terms of how to utilise Article
15(9), will be to propose and confirm with the Commission and other Member States a
common sense approach to its use, in light of the difficulties experienced this year in the
implementation of existing banking and borrowing provisions.
Conclusions
21.
We offer the following conclusions:










In relation to quota convertibility, defining ‘target’ and ‘non-target’ species is
problematic within a mixed fishery, and so a pragmatic solution is needed;
Stocks qualifying as being within “safe biological limits” will need consideration in
light of the number of stocks that are within an analytical assessment;
Conversion of qualifying demersal species into one another should in general be
permitted, whereas pelagic species should not;
Conversion of deep-sea species into one another should be permitted, but they
should not be convertible into demersal;
Conversion should be permitted at any time, within quota management rules
determined annually by the UK and Scottish Governments;
Producer Organisations should lead consideration of conversion;
There may be logic in allocating aggregate amounts available for conversion as a
‘stock’, so that Producer Organisations might deploy (and transfer) such allocations
in the overall management of fisheries;
Careful consideration will need to be given to the extent to which Member States in a
region should apply approaches to quota convertibility that are broadly consistent;
The approach of Norway to this facility will be an important consideration; and,
Inter-annual flexibility will continue to be a useful facility in quota management, but
there must be agreed a common sense approach to the interaction between the CFP
Regulation and the Control Regulation.
Marine Scotland
January 2014.
Annex A
‘Safe Biological Limits’: 2013
Table 1: Stocks within Safe Biological Limits
Demersal
Pelagic
Deep Sea
North Sea
haddock, plaice, saithe,
blue whiting
West of Scotland
saithe
blue whiting
Table 2: Stocks outside Safe Biological Limits
Demersal
Pelagic
Deep Sea
North Sea
cod
West of Scotland
cod, whiting
Table 3: Stocks without an analytical assessment
Demersal
Pelagic
Deep Sea
North Sea
brill, dab, flounder, Nephrops,
whiting,
hake,
monkfish,
megrim, pollock, skates and
rays, sole, turbot, blue ling, ling
West of Scotland
Nephrops, hake, monkfish,
megrim,
haddock,
Rockall
haddock, pollock, skates and
rays, Greenland halibut, blue
ling, ling
mackerel,
horse
mackerel, mackerel, ASH, herring, horse
herring
mackerel
Deep water sharks, alfonsions, argentines, black scabbardfish,
greater forkbeard, orange roughy, roundnose grenadier, red
(blackspot) seabreem