COUNCIL REGULATION (EC) No 679/2009
of 7 July 2009
amending Regulation (EC) No 1386/2007 laying down conservation and enforcement measures applicable in the Regulatory Area of the Northwest Atlantic Fisheries Organisation
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1386/2007of 22 October 2007 laying down conservation and enforcement measures applicable in the Regulatory Area of the Northwest Atlantic Fisheries Organisation (1), and in particular Article 70 thereof,
Having regard to the proposal from the Commission,
Whereas:
(1)
Regulation (EC) No 1386/2007 implements certain conservation and enforcement measures adopted by the Northwest Atlantic Fisheries Organisation (‘NAFO’). This Regulation has subsequently been amended by Council Regulation (EC) No 538/2008 (2). Furthermore, inconsistencies between Regulation (EC) No 1386/2007 and NAFO rules on conservation and enforcement have been identified.
(2)
At its 30th annual meeting held in September 2008, NAFO adopted a number of amendments to its conservation and enforcement measures. Those amendments relate to provisions on bottom fishing, closed areas to ensure seamount protection, labelling requirements and additional port state measures.
(3)
Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing (3), will start to apply on 1 January 2010.
(4)
Regulation (EC) No 1386/2007 should therefore be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 1386/2007 is hereby amended as follows:
1.
in Article 3, the following points shall be added:
‘21.
“Bottom fishing activities” means any fishing activity involving gear that contacts or is likely to contact the ocean bottom during the normal course of fishing operations.
22.
“Existing bottom fishing areas” means areas where, as indicated by VMS and/or other geo-reference data, bottom fishing activities have been conducted at least in two years within a reference period of 1987 to 2007.
23.
“New bottom fishing areas” means any area, other than existing bottom fishing areas, in which bottom fishing activities are conducted.’;
2.
in Article 6, the following paragraph shall be added:
‘4. Masters of Community vessels shall record coordinates pertaining to the start and end locations of any trial tow conducted in accordance with paragraph 3.’;
3.
in Article 7, the following paragraph shall be added:
‘5. Vessels conducting a directed fishery for species other than those specified in paragraphs 1, 2 and 3 of this Article are permitted to take regulated species with nets having a mesh size less than specified in those paragraphs, provided that the by-catch requirements in Article 4 are complied with.’;
4.
in Article 8, paragraph 2 shall be replaced by the following:
‘2. However, Community vessels fishing in areas outside the NAFO Regulatory Area may retain on board nets with a mesh size smaller than that prescribed in Article 7, provided that these nets are securely lashed and stowed and are not available for immediate use.’;
5.
Article 11 shall be replaced by the following:
‘Article 11
Special provisions for shrimp fishery in Division 3L
Fishing for shrimp in Division 3L shall take place in depths greater than 200 metres.’;
6.
Article 12 shall be replaced by the following:
‘Article 12
Fisheries restricted areas
1. The conduct of bottom fishing activities shall be prohibited in the following areas:
Area
Coordinate 1
Coordinate 2
Coordinate 3
Coordinate 4
Orphan Knoll
50.00.30 N
45.00.30 W
51.00.30 N
45.00.30 W
51.00.30 N
47.00.30 W
50.00.30 N
47.00.30 W
Corner
Seamounts
35.00.00 N
48.00.00 W
36.00.00 N
48.00.00 W
36.00.00 N
52.00.00 W
35.00.00 N
52.00.00 W
Newfoundland
Seamounts
43.29.00 N
43.20.00 W
44.00.00 N
43.20.00 W
44.00.00 N
46.40.00 W
43.29.00 N
46.40.00 W
New England
Seamounts
35.00.00 N
57.00.00 W
39.00.00 N
57.00.00 W
39.00.00 N
64.00.00 W
35.00.00 N
64.00.00 W
Fogo
Seamount 1
42.31.33 N
53.23.17 W
42.31.33 N
52.33.37 W
41.55.48 N
53.23.17 W
41.55.48 N
52.33.37 W
Fogo
Seamount 2
41.07.22 N
52.27.49 W
41.07.22 N
51.38.10 W
40.31.37 N
52.27.49 W
40.31.37 N
51.38.10 W
2. The area in NAFO Division 3O defined by connecting the following coordinates (in numerical order and back to coordinate 1) shall be closed to all bottom fishing activities:
Coordinate No
Latitude
Longitude
1
42°53′00″N
51°00′00″W
2
42°52′04″N
51°31′44″W
3
43°24′13″N
51°58′12″W
4
43°24′20″N
51°58′18″W
5
43°39′38″N
52°13′10″W
6
43°40′59″N
52°27′52″W
7
43°56′19″N
52°39′48″W
8
44°04′53″N
52°58′12″W
9
44°18′38″N
53°06′00″W
10
44°18′36″N
53°24′07″W
11
44°49′59″N
54°30′00″W
12
44°29′55″N
54°30′00″W
13
43°26′59″N
52°55′59″W
14
42°48′00″N
51°41′06″W
15
42°33′02″N
51°00′00″W’
7.
the following shall be inserted:
‘CHAPTER IIa
PROTECTION OF VULNERABLE MARINE ECOSYSTEMS
Article 12a
Definition of vulnerable marine ecosystems
For the purposes of this Chapter, “vulnerable marine ecosystems” means:
(a)
marine ecosystems that are unique or that contain rare species whose loss could not be compensated for by similar areas or ecosystems. These include:
(i)
habitats that contain endemic species;
(ii)
habitats of rare, threatened or endangered species that occur only in discrete areas;
(iii)
nurseries or discrete feeding, breeding, or spawning areas;
(b)
marine ecosystems that are necessary for the survival, function, spawning/reproduction or recovery of fish stocks, particular life-history stages (e.g. nursery grounds or rearing areas), or of rare, threatened or endangered marine species;
(c)
marine ecosystems that are highly susceptible to degradation by anthropogenic activities;
(d)
marine ecosystems that are characterised by populations or assemblages of species with one or more of the following characteristics:
(i)
slow growth rates;
(ii)
late age of maturity;
(iii)
low or unpredictable recruitment; or
(iv)
long-lived;
(e)
marine ecosystems that are characterised by complex physical structures created by significant concentrations of biotic and abiotic features. In these ecosystems, ecological processes are usually highly dependent on these structured systems. Further, such ecosystems often have high diversity, which is dependent on the structuring organisms.
Article 12b
Definition of significant adverse impacts
For the purposes of this Chapter “significant adverse impacts” means impacts that compromise ecosystem structure or function in a manner that:
(a)
impairs the ability of affected populations to replace themselves;
(b)
degrades the long-term natural productivity of habitats; or
(c)
causes, on more than a temporary basis, significant loss of species richness, habitat or community types.
Article 12c
Definition of vulnerable marine ecosystem indicator species
For the purposes of this Chapter, “vulnerable marine ecosystem indicator species” means antipatharians, gorgonians, cerianthid anemone fields, lophelia, and sea penfields.
Article 12d
Definition of an encounter with vulnerable marine ecosystems
For the purposes of this Chapter, an “encounter with vulnerable marine ecosystems” means a catch, per gear set, of vulnerable marine ecosystem indicator species exceeding 100 kg of live coral and/or 1 000 kg of live sponge.
Article 12e
Assessment of bottom fishing
1. Member States whose vessels intend to conduct bottom fishing activities in the NAFO Regulatory Area shall carry out in 2009 an assessment of the known and anticipated impacts of those activities on vulnerable marine ecosystems. Member States shall only authorise bottom fishing activities in cases where the assessment concludes that such activities are not likely to have significant adverse impacts on vulnerable marine ecosystems.
2. For the purposes of the implementation of the assessment referred to in paragraph 1, Member States shall rely on the best scientific and technical information available concerning the location of vulnerable marine ecosystems in the areas in which their fishing vessels intend to operate. That information shall include, where available, scientific data on the basis of which the likelihood of occurrence of such ecosystems can be estimated.
3. The evaluation of the risk of significant adverse impacts on vulnerable marine ecosystems carried out under the assessment referred to in paragraph 1 shall take into account, as appropriate, differing conditions prevailing in new bottom fishing areas and existing bottom fishing areas.
4. Member States shall submit their assessment referred to in paragraph 1 to the Commission as soon as possible but not later than 30 June 2009. That submission shall also include a description of the mitigation measures intended to prevent significant adverse impacts on vulnerable marine ecosystems. The Commission shall promptly forward this information to the NAFO Secretariat.
Article 12f
Bottom fishing activities in new bottom fishing areas
1. All fishing activities in new bottom fishing areas, or with bottom gear not previously used in the area concerned, shall be considered as exploratory fisheries and shall be conducted in accordance with an Exploratory Fishery Protocol referred to in paragraph 2.
2. Member States, whose vessels intend to conduct fishing activities in new bottom fishing areas, or with bottom gear not previously used in the area concerned, shall set up an Exploratory Fishery Protocol using the templates in Annex XVI.
3. The Exploratory Fishery Protocol shall include the following information:
(a)
a harvesting plan which outlines target species, dates and areas. Area and effort restrictions shall be considered to ensure that fisheries occur on a gradual basis in a limited geographical area;
(b)
a mitigation plan including measures to prevent significant adverse impacts to vulnerable marine ecosystems which may be encountered during the fishery;
(c)
a catch monitoring plan which includes recording and reporting of all species caught, 100 % satellite tracking and 100 % observer coverage. The reporting and recording must be sufficiently detailed to conduct an assessment of the activity, if required;
(d)
a data collection plan to facilitate the identification of vulnerable marine ecosystems and species in the area fished.
4. Member States shall ensure that the exploratory bottom fishing activities are subject to the assessment procedure set out in Article 12e.
5. Member States shall submit the Exploratory Fisheries Protocol referred to in paragraph 2 and the assessment referred to in Article 12e(1) to the Commission for onward transmission to the NAFO Secretariat. Member States shall ensure that the exploratory fishing activities are not authorised before this information has been received by the NAFO Secretariat.
Article 12g
Unforeseen encounters with vulnerable marine ecosystems in existing bottom fishing areas
1. Where, in the course of fishing operations, a vessel conducting fishing activities in existing bottom fishing areas encounters vulnerable marine ecosystem indicators, the master shall quantify the vulnerable marine ecosystem indicator species caught.
2. If the quantity of vulnerable marine ecosystem indicator species caught in a fishing operation, such as trawl tow or set of a gillnet or longline, is beyond the threshold defined in Article 12d, the provisions set out in paragraphs 3 and 4 of this Article shall apply.
3. The vessel master shall report the incident to the flag Member State, which without delay shall forward the information to the Executive Secretary through the Commission. The Commission shall immediately alert other Member States whose vessels operate in the Area. The relevant Member States shall immediately alert all fishing vessels in the area flying their flag.
4. The vessel master shall cease fishing and move away at least 2 nautical miles from the endpoint of the tow/set in the direction least likely to result in further encounters. The captain shall use his best judgment based on all available sources of information.
Article 12h
Unforeseen encounters with vulnerable marine ecosystems in new bottom fishing areas
1. Where, in the course of fishing operations, a vessel conducting fishing activities in new bottom fishing areas encounters vulnerable marine ecosystem indicators, the master shall quantify the vulnerable marine ecosystem indicator species caught. Observers deployed shall identify corals, sponges and other organisms to the lowest possible taxonomical level.
2. If the quantity of such species caught per gear set, such as trawl tow or set of a gillnet or longline, is beyond the threshold defined in Article 12d, the provisions set out in paragraphs 3, 4 and 5 of this Article shall apply.
3. The vessel master shall report the incident to the flag Member State, which without delay shall forward the information to the Executive Secretary through the Commission. The Commission shall immediately alert other Member States whose vessels operate in the Area. The relevant Member States shall immediately alert all fishing vessels in the area flying their flag.
4. A temporary closure shall apply of a two mile radius around an encounter position reported by a vessel flying the flag of a Contracting Party to NAFO. The reporting position is that provided by the vessel, either the endpoint of the tow/set or another position that the evidence suggests is closest to the exact encounter location. This temporary closure shall apply until such time when the NAFO Secretariat advises that the area can be reopened.
5. The vessel shall cease fishing and move away at least 2 nautical miles from the endpoint of the tow/set in the direction least likely to result in further encounters. The captain shall use his best judgment based on all available sources of information.’;
8.
Article 20 shall be amended as follows:
(a)
paragraph 1 shall be replaced by the following:
‘1. All processed fish harvested in the NAFO Regulatory Area shall be labelled in such a way that each species and product category as referred to in Article 1 of Council Regulation (EC) No 104/2000 of 17 December 1999 on the common organisations of the market in fishery and aquaculture products (4), and in case of shrimp the date of capture, is identifiable, using respectively the 3-Alpha code in Annex I to that Regulation, and the product form codes in Annex XIV(b) to this Regulation.
(b)
paragraph 2 shall be replaced by the following:
‘2. All shrimp harvested in Divisions 3L and 3M and all Greenland halibut harvested in Subarea 2 and Divisions 3KLMNO shall be marked as having been caught in these respective zones.’;
9.
in Article 47, the following point shall be added:
‘(g)
provide to an inspector upon request, coordinates pertaining to the start and end locations of any trial tow conducted in accordance with Article 6(4).’;
10.
Chapter V shall be replaced by the following:
‘CHAPTER V
PORT STATE CONTROL OF VESSELS FLYING THE FLAG OF ANOTHER CONTRACTING PARTY
Article 62
Scope
1. This Chapter shall apply to landings or transhipments in ports of Member States, by fishing vessels flying the flag of another Contracting Party to NAFO of fish caught in the NAFO Regulatory Area or fish products originating from such fish that have not been previously landed or offloaded at a port.
2. This Chapter shall apply without prejudice to Regulations (EEC) No 2847/93 and (EC) No 1005/2008.
Article 63
Designated ports
Member States shall designate ports to which fishing vessels may be permitted access for the purpose of landing or transhipment. Member States shall notify their designated ports to the Commission, which shall transmit the list of these ports to the NAFO Secretariat. Any subsequent amendments to the list shall be notified to the NAFO Secretariat no less than fifteen days before the amendment comes into effect.
Article 63a
Competent authority
1. Member States shall designate the competent authority which shall act as the contact point for the purposes of receiving notifications in accordance with Article 63b, receiving confirmation and issuing authorisations in accordance with Article 63c.
2. Member States shall advise the Commission about the competent authority name and its contact information. The Commission shall forward the information to the NAFO Secretariat.
Article 63b
Prior notice of entry into port
1. By way of derogation from Article 28e(1) of Regulation (EEC) No 2847/93, the master of the fishing vessel referred to in Article 62(1) of this Regulation or his representative intending to call into a port to land or tranship shall notify the competent authority of the port Member State referred to in Article 63a of this Regulation at least three working days before the estimated time of arrival.
2. However, a Member State may make provisions for another prior notification period, taking into account, inter alia, distance between fishing grounds and its port. Member States shall advise the Commission or a body designated by it of that prior notification period. The Commission shall forward the information to the NAFO Secretariat.
3. The prior notification shall be accompanied by the following forms with Part A duly completed:
(a)
form PSC 1, as referred to in Annex XV (A), where the vessel intends to land or tranship its own catch;
(b)
form PSC 2, as referred to in Annex XV (B), where the vessel intends to land or tranship catch that was received through transhipment. A separate form shall be used for each donor vessel;
(c)
both forms PSC 1 and PSC 2, where the vessel intends to land or tranship both its own catch and catch that was received through transhipment.
4. Masters or their representative may cancel a prior notification by notifying the competent authorities of the port they intended to use, not later than 24 hours before the notified estimated time of arrival in the port. However, the port Member State may make provisions for another notification period. The notification shall be accompanied by a copy of the original PSC 1 or PSC 2 with the word “cancelled” written across it.
5. The competent authority of the port Member State shall forward a copy of the prior notification form as referred to in paragraphs 3 and 4 without delay to the flag State Contracting Party of the fishing vessel which intends to land/or tranship and, if that vessel has engaged in transhipment operations, to the flag State Contracting Party of donor vessels.
6. A copy of the form shall also be forwarded to the Commission or a body designated by it, which shall transmit it to the NAFO Secretariat without delay.
Article 63c
Authorisation to land or tranship
1. Landing or transhipment operations may only commence after authorisation has been given by the competent authority of the port Member State. Such authorisation shall only be given after the returning by the flag State of the copy of form PSC1 and/or form PSC2, transmitted pursuant to Article 63b(5) with part B duly completed, confirming that:
(a)
the fishing vessel declared to have caught the fish had sufficient quota for the species declared;
(b)
the declared quantity of fish on board has been duly reported by species and taken into account for the calculation of any catch or effort limitations that may be applicable;
(c)
the fishing vessel declared to have caught the fish had authorization to fish in the areas declared; and
(d)
the presence of the vessel in the area in which it has declared to have taken its catch has been verified by VMS data.
2. By way of derogation from paragraph 1 the competent authority of the port Member State may authorise all or part of a landing in the absence of the confirmation referred to in paragraph 1. In such cases the fish concerned shall be kept in storage under the control of the competent authority. The fish shall only be released to be sold, taken over or transported once the confirmation referred to in paragraph 1 has been received and checked by the competent authorities. If the confirmation has not been received within 14 days of the landing the competent authority of the port Member State may confiscate and dispose of the fish in accordance with national rules.
3. The competent authority of the port Member State shall notify without delay to the master its decision on whether or not to authorise the landing or transhipment by returning a copy of form PSC 1 and/or form PSC 2 with Part C duly completed. This copy shall also be transmitted to the Commission or a body designated by it without delay, which shall forward the information to the NAFO Secretariat.
Article 63d
Inspections
1. Unless otherwise required in a recovery plan, the port Member State shall carry out inspections of at least 15 % of all such landings or transhipments during each reporting year.
2. Inspections shall be conducted by authorised national inspectors who shall present credentials to the master of the vessel prior to the inspection.
3. The port Member State may invite inspectors of other Contracting Parties to accompany their own inspectors and observe the inspection of landings or transhipment operations within the meaning of this Chapter.
4. An inspection shall involve the monitoring of the entire discharge or transhipment in that port and the national inspectors shall as a minimum:
(a)
cross-check against the quantities of each species landed or transhipped:
(i)
the quantities by species recorded in the logbook,
(ii)
the catch and activity reports, and
(iii)
all information on catches provided in the prior notification (PSC 1 or PSC 2);
(b)
verify and record the quantities by species of catch remaining on board upon completion of landing or transhipment;
(c)
verify any information from inspections carried out at sea;
(d)
verify all nets on board and record mesh size measurements;
(e)
verify fish size for compliance with minimum size requirements.
5. The national inspectors shall make all possible efforts to avoid unduly delaying the fishing vessel and ensure that the vessel suffers the minimum interference and inconvenience and that unnecessary degradation of the quality of the fish is avoided.
6. The master of a fishing vessel shall:
(a)
cooperate with and assist in the inspection of the fishing vessel conducted pursuant to these procedures and shall not obstruct, intimidate or interfere with the port State inspectors in the performance of their duties;
(b)
provide access to any areas, decks, rooms, catch, nets or other gear or equipment, and provide any relevant information which the port State inspectors request including copies of any relevant documents.
Article 63e
Serious infringements
1. The following infringements shall be considered serious:
(a)
preventing inspectors from carrying out their duties;
(b)
landing or transhipping in a port not designated;
(c)
failure to comply with the provisions related to the pre-notification of arrival;
(d)
landing or transhipping without authorization of the port Member State.
2. Each port Member State shall take enforcement measures with respect to a fishing vessel where it has been established in accordance with its law that the vessel committed a serious infringement referred to in paragraph 1. The measures may include, in particular depending on the gravity of the offence and in accordance with the pertinent provisions of national law:
(a)
fines;
(b)
seizure of illegal fishing gear and catches;
(c)
sequestration of the vessel.
Article 63f
Inspection reports
1. Each inspection shall be documented by completing the port inspection report form as set out in Annex XII.
2. The inspection report may be commented upon by the master and shall be signed by the inspector and the master at the end of the inspection. A copy of the inspection report shall be given to the master of the fishing vessel.
3. A copy of each inspection report shall be transmitted without delay to the flag State of the inspected fishing vessel and to the flag State of the donor vessel where the vessel has engaged in transhipment operations. A copy shall also be sent to the Commission or a body designated by it without delay, which shall forward the information to the NAFO Secretariat. The original or a certified copy of each inspection report shall be forwarded on request to the flag State of the inspected vessel.’;
11.
Article 68 is replaced by the following:
‘Article 68
Entry into port
1. Without prejudice to Regulations (EEC) No 2847/93, (EC) No 1093/94 and (EC) No 1005/2008, Member States shall ensure that masters of non-Contracting Party vessels may only call into a port designated according to Article 63. The master intending to call into a designated port shall notify the competent authority of the port Member State in accordance with the provisions of Article 63b. The port Member State shall forward without delay this information to the flag State of the vessel and to the Commission or a body designated by it, which shall transmit it without delay to the NAFO Secretariat.
2. The provisions of Articles 63b and 63c shall apply mutatis mutandis. The port Member State shall prohibit the entry into its ports of vessels that have not given the required prior notice referred to in paragraph 1 and for which the confirmation by the flag State referred to in Article 63c(1) has not been provided.
3. A Member State denying landing or transhipment shall inform the master of the vessel concerned of its decision.’;
12.
the following Article shall be inserted:
‘Article 68a
Inspection in port
1. Member States shall ensure that each non-Contracting Party vessel which enters one of its ports is inspected by their competent authorities. The vessel shall not be allowed to land or tranship until this inspection has taken place. Such inspections shall include the vessels documents, logbooks, fishing gear, catch on board and any other matter relating to the vessel activity in the NAFO Regulatory Area.
2. If, on completion of inspection, the competent authorities find that the non-Contracting Party vessel holds on board any of the stocks or group of stocks regulated by NAFO or referred to in Annex II to this Regulation, the Member State concerned shall prohibit any landing and/or transhipment of catches from that vessel.
3. However, no such prohibition shall apply if the master of the inspected vessel or his representative proves to the satisfaction of the competent authorities of the Member State concerned that:
(a)
the species held on board were caught outside the NAFO Regulatory Area; or
(b)
the species held on board and listed in Annex II were caught in accordance with the Conservation and Enforcement Measures of NAFO.
4. A Member State denying landing or transhipment shall inform the master of the vessel concerned of its decision.
5. The inspection shall be documented by at least completing the port inspection report form provided in Annex XII.
6. Information on the results of all inspections of non-Contracting Party vessels conducted in the ports of Member States, and any subsequent action, shall be transmitted without delay to the flag State of the vessel and to the Commission or a body designated by it, which shall transmit it without delay to the NAFO Secretariat.’;
13.
in Annex V, point 3 shall be deleted;
14.
in Annex XII, point A shall be replaced by the text in Annex I to this Regulation;
15.
the text in Annex II to this Regulation shall be added as Annex XV;
16.
the text in Annex III to this Regulation shall be added as Annex XVI.
Article 2
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 July 2009.