Corrigendum to Council Regulation (EC) No 812/2004 of 26 April 2004 laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98 (OJ L 150, 30.4.2004)
Date: 2004-05-24
Institutions: Council of the European Union
Subjects: Baltic Sea, fishing controls, fishing net, fishing regulations, marine mammal, protection of animal life

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Corrigendum to Council Regulation (EC) No 812/2004 of 26 April 2004 laying down measures concerning inci-
dental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98

(Official Journal of the European Union L 150 of 30 April 2004)

Regulation (EC) No 812/2004 should read as follows:

COUNCIL REGULATION (EC) No 812/2004

of 26 April 2004

laying down measures concerning incidental catches of cetaceans in fisheries and amending Regu-
lation (EC) No 88/98

THE COUNCIL OF THE EUROPEAN UNION,

(3)

The scientific information available and the techniques
developed to reduce incidental capture and killing of
cetaceans in fisheries justify additional measures being
taken to further the conservation of small cetaceans in a
consistent and cooperative manner at Community level.

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 37 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (1),

Whereas:

(1)

(2)

is to ensure exploitation of

The objective of the common fisheries policy, as defined
in Article 2 of Council Regulation (EC) No 2371/2002 of
20 December 2002 on the conservation and sustainable
exploitation of fisheries resources under the common
fisheries policy (2),
living
aquatic resources that provides sustainable economic,
environmental and social conditions. To this end, the
Community should, among other things, minimise the
impact of fishing activities on marine ecosystems, and
the common fisheries policy should be consistent with
in particular with environ-
other Community policies,
mental policy.

Council Directive 92/43/EEC of 21 May 1992 on the
conservation of natural habitats and of wild fauna and
flora (3) gives strict protection status to cetaceans and
requires Member States to undertake surveillance of the
conservation status of
these species. Member States
should also establish a system to monitor the incidental
to take further
capture and killing of
research and conservation measures as
required to
ensure that incidental capture or killing does not have a
significant impact on the species concerned.

these species,

(1) Opinion delivered on 10 February 2004.
(2) OJ L 358, 31.12.2002, p. 59.
(3) OJ L 206, 22.7.1992, p. 7. Directive as

last amended by
Regulation (EC) No 1882/2003 of the European Parliament and of
the Council (OJ L 284, 31.10.2003, p. 1).

(4)

(5)

Some acoustic devices have been developed to deter
cetaceans from fishing gear, and have proven successful
in reducing by-catch of cetacean species in static net
fisheries. The use of such devices should therefore be
required in areas and fisheries with known or foreseeable
high levels of by-catch of small cetaceans, taking into
account the cost/efficiency of such requirement. It is also
necessary to establish the technical specifications for the
efficiency of the acoustic deterrent devices to be used in
such fisheries. Scientific studies or pilot projects are
needed to increase knowledge about the effects over
time of the use of acoustic deterrent devices.

in particular on new
Scientific and technical research,
forms of active deterrent devices, should not be hindered
by this Regulation. While Member States should, there-
fore, be allowed, for the purpose of this Regulation, to
authorise the use of newly developed and efficient types
of acoustic deterrent devices not in conformity with the
technical specifications laid down in this Regulation on a
temporary basis, it is also necessary to provide for tech-
nical specifications of acoustic deterrent devices to be
brought up to date as soon as possible in accordance
with Council Decision 1999/468/EC of 28 June 1999
laying down the procedures for the exercise of imple-
menting powers conferred on the Commission (4).

(4) OJ L 184, 17.7.1999, p. 23.

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(6)

(7)

(8)

Independent observations of fishing activities are essen-
tial to provide reliable estimates of the incidental catch
of cetaceans.
It is therefore necessary for monitoring
schemes with independent on-board observers to be set
up and for the designation of the fisheries where such
monitoring should be given priority to be coordinated.
In order to provide representative data on the fisheries
concerned, the Member States should design and imple-
ment appropriate monitoring programmes for vessels
flying their flag engaged in these fisheries. For small-
sized fishing vessels less than 15 m overall length, which
sometimes are unable to allow an additional person
permanently on board as an observer, data on incidental
catches of cetaceans should be collected through scien-
tific studies or pilot projects. Common monitoring and
reporting tasks also need to be set.

To enable regular evaluation at Community level and
thorough assessment in the medium term to take place,
the Member States should report annually on the use of
the on-board
pingers
observer programmes
information
collected on the incidental capture and killing of ceta-
ceans in fisheries.

implementation of

and include

and the

all

The risk created by driftnet
fishing to the critically
endangered population of harbour porpoise in the Baltic
Sea area requires the use of driftnets in this area to be
stopped. Community vessels which fish with driftnets in
this area will be subject
to economic and technical
constraints necessitating a phasing-out period before a
total ban on this gear by 1 January 2008. Council
Regulation (EC) No 88/98 of 18 December 1997
laying down technical measures for the conservation of
fishery resources in the waters of the Baltic Sea, the Belts
and the Sound (1) should be amended to incorporate
these measures,

HAS ADOPTED THIS REGULATION:

Article 1

Subject matter

This Regulation lays down measures aimed at mitigating inci-
in the
cetaceans by
dental
areas indicated in Annexes I and III.

catches of

fishing

vessels

to use the fishing gear defined in Annex I in the areas, for the
periods, and as from the dates indicated therein without the
simultaneous use of active acoustic deterrent devices.

The masters of

2.
the Community fishing vessels shall
ensure that the acoustic deterrent devices are fully operational
when setting the gear.

By way of derogation, paragraph 1 shall not apply to
3.
fishing operations conducted solely for the purpose of scientific
investigation which are carried out with the authorisation and
under the authority of the Member States or Member States
concerned and which aim at developing new technical
measures to reduce the incidental capture or killing of ceta-
ceans.

4. Member States shall take necessary steps to monitor and
the
assess, by means of scientific studies or pilot projects,
effects of pinger use over time in the fisheries and areas
concerned.

Article 3

Technical specifications and conditions of use

1.
Acoustic deterrent devices used in application of
Article 2(1) shall comply with one set of the technical specifica-
tions and conditions of use defined in Annex II.

2.
By way of derogation from paragraph 1, Member States
may authorise the temporary use of acoustic deterrent devices
which do not fulfil the technical specifications or conditions of
use defined in Annex II, provided that their effect on the reduc-
tion of incidental catches of cetaceans has been sufficiently
documented. An authorisation shall be valid for no more than
two years.

inform the Commission of

3. Member States shall
the
authorisations in accordance with paragraph 2 within two
months of the date of issue. They shall provide the Commission
with technical and scientific information on the acoustic deter-
rent device authorised and its effects on incidental catches of
cetaceans.

Article 2

Use of acoustic deterrent devices

Article 4

At-sea observer schemes

1. Without prejudice to other Community provisions,
it
shall be prohibited for vessels of 12 m or over in overall length

(1) OJ L 9, 15.1.1998 p. 1. Regulation as

last amended by

Regulation (EC) No 48/1999 (OJ L 13, 18.1.1999, p. 1).

1. Member States shall design and implement monitoring
schemes for incidental catches of cetaceans using observers on
board the vessels flying their flag and with an overall length of
15 m or over,
for the fisheries and under the conditions
defined in Annex III. The monitoring schemes shall be designed
to provide representative data of the fisheries concerned.

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2. Member States shall take the necessary steps to collect
scientific data on incidental catches of cetaceans for vessels
with an overall length less than 15 m and involved in fisheries
defined in Annex III point 3 by means of appropriate scientific
studies or pilot projects.

(c) the type of fishery concerned (including gear characteristics,
areas with reference to Annexes I and III and target
species);

(d) the duration of

the fishing trip and the corresponding
fishing effort (expressed as total net length × fishing hours
for passive gear and numbers of fishing hours for towed
gear);

Article 5

Observers

1.
In order to discharge their obligation to provide obser-
vers, Member States shall appoint independent and properly
qualified and experienced personnel. In order to carry out their
tasks the personnel selected must have the following qualifica-
tions:

(a) sufficient experience to identify cetacean species and fishing

practices;

(b) basic maritime navigation skills and appropriate safety

instruction;

(c) the capacity to accomplish elementary scientific tasks, for
example taking of samples where necessary and making
accurate observations and records in that connection;

(d) a satisfactory knowledge of

the language of

the flag

Member State of the vessel being observed.

The task of observers is to monitor incidental catches of
2.
cetaceans and to collect the data necessary to extrapolate the
by-catch observed to the whole fishery concerned. In particular,
the observers shall:

(a) monitor the fishing operations of the vessels concerned and
record the appropriate data on fishing effort (gear charac-
teristics, location and timing of beginning and end of effec-
tive fishing operation);

(b) monitor incidental catches of cetaceans.

Observers may also carry out such other observations, as may
be determined by Member States, for the purposes of contri-
buting to the scientific understanding of the catch composition
of the vessels concerned and the biological status of fishery
stocks.

3.
The observer shall send a report containing all the data
collected on the fishing effort and observations on incidental
catches of cetaceans, including a summary of his/her main find-
ings, to the competent authorities of the flag Member State
concerned.

The report shall contain in particular the following information
for the period in question:

(a) the vessel's identity;

(e) the number of

incidentally-caught cetaceans,

including
species and where possible additional information on size
or weight, sex, age, and, where appropriate, indications on
animals lost during hauling the gear or released alive;

(f) any additional information the observer deems useful to the
objectives of this Regulation, or any additional observation
on cetacean biology (such as sightings of cetaceans or par-
ticular behaviour in relation with the fishing operation).

The master of the vessel may request a copy of the observer's
report.

4.
The flag Member State shall keep the information
contained in observer's reports for at least five years after the
end of the relevant reporting period.

Article 6

Annual reports

1.
Each year, Member States shall send the Commission, by
1 June, a comprehensive annual report on the implementation
of Articles 2, 3, 4 and 5 during the previous year. The first
report shall cover both the remaining part of the year following
the entry into force of this Regulation and the entire year that
follows.

effort

collected

2.
On the basis of the observers' reports provided according
to Article 5(3) and all other appropriate data, including those
on fishing
in application of Council
Regulation (EC) No 1543/2000 of 29 June 2000 establishing a
Community framework for the collection and management of
the data needed to conduct the common fisheries policy (1), the
annual report shall include estimates of the overall incidental
catches of cetaceans in each of the fisheries concerned. This
report shall include an assessment of the conclusions of the
reports and any other appropriate information,
observers'
including any research conducted within the Member States to
reduce the incidental capture of cetaceans in fisheries. When
reporting on the results of scientific studies or pilot projects as
provided for in Articles 2(4) and 4(2), Member States shall
ensure that sufficiently high quality standards are reached in
their design and implementation and shall provide detailed
information concerning those standards to the Commission.

(b) the name of the observer and the period during which the

observer was on board;

(1) OJ L 176, 15.7.2000, p. 1.

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Article 7

Overall assessment and review

One year at the latest after the submission by Member
1.
States of their second annual report, the Commission shall
report to the European Parliament and the Council on the
operation of this Regulation in the light of the information
available as a result of the application of Article 6 and of the
assessment by
Economic
Committee for Fisheries of the reports of the Member States.
The report shall consider in particular the application of this
Regulation to types of vessel and areas, the quality of informa-
tion derived from observer schemes and the quality of pilot
projects and may be accompanied by appropriate proposals.

Scientific, Technical

and

the

This report shall be updated following the submission of

2.
the fourth annual report by Member States.

2.
Until 31 December 2007, a vessel may keep on board,
or use for fishing, driftnets if authorised to do so by the
competent authorities of the flag Member State.

In 2005, the maximum number of vessels which may
3.
be authorised by a Member State to keep on board, or use
for fishing, driftnets shall not exceed 60 % of the fishing
vessels which used drift-nets during the period 2001 to
2003.

In 2006 and 2007, the maximum number of vessels shall
not exceed 40 % and 20 % respectively of the fishing vessels
which used driftnets during the period 2001 to 2003.

4. Member States shall communicate to the Commission
by 30 April of each year, the list of vessels authorised to
carry out fishing activities using driftnets; for 2004, the
information shall be sent not later than 31 August 2004.

Article 8

Article 8b

Adaptation to technical progress and additional technical
guidance

Conditions for drift-nets

The following shall be adopted in accordance with the
laid down in Article 30(2) of

1.
management procedure
Regulation (EC) No 2371/2002:

(a) operational and technical guidance on the tasks of the

observers, as set out in Article 6;

(b) detailed rules on reporting requirements, as set out

in

Article 6.

Amendments to Annex II which are necessary in order to
2.
adapt it to technical and scientific progress shall be adopted in
accordance with the regulatory procedure laid down in
Article 30(3) of Regulation (EC) No 2371/2002.

1.
Floating buoys, with radar reflectors, must be moored
to each end of the netting, so that its position can be deter-
mined at any time. The buoys must be permanently marked
with the registration letter(s) and number of the vessel to
which they belong.

2.
The master of a fishing vessel using driftnets shall
keep a logbook in which he must record the following
information on a day-to-day basis:

(a) the total length of the nets on board;

(b) the total length of the nets used in each fishing opera-

tion;

(c) the quantity of by-catches of cetaceans;

Article 9

(d) the date and position of such catches.

Amendment of Regulation (EC) No 88/98

All fishing vessels using driftnets shall keep on board

3.
the authorisation referred to in Article 8a(2).’

The following Articles are hereby inserted:

‘Article 8a

Restrictions on drift-nets

Article 10

Entry into force

1.
From 1 January laying down the procedures for the
exercise of implementing powers conferred 2008, it shall be
prohibited to keep on board, or use for fishing, driftnets.

This Regulation shall enter into force on 1 July 2004.

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This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Luxembourg, 26 April 2004.

For the Council

The President

J. WALSH

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ANNEX I

Fisheries in which the use of acoustic deterrent devices is mandatory

Area

Gear

Period

Starting date

A. Baltic Sea area delimited
by a line running from
the Swedish coast at the
point at longitude 13° E,
thence due south to lati-
tude 55° N, thence due
east to longitude 14° E,
thence due north to the
coast of Sweden; and,
area delimited by a line
running from the eastern
coast of Sweden at the
point at latitude 55°30' N,
thence due east to longi-
tude 15° E, thence due
north to latitude 56° N,
thence due east to longi-
tude 16° E thence due
north to the coast of
Sweden

B.

ICES subarea IV and

division III a

(a) Any bottom-set gillnet

All year

1 June 2005

or entangling net

(b) Any drift-net

All year

1 June 2005

(a) Any bottom-set gillnet
or entangling net, or
combination of
these
nets, the total length of
which does not exceed
400 metres

(b) Any bottom-set gillnet
or entangling net with
mesh sizes > 220 mm

(a) 1 August - 31 October

1 August 2005

(b) All year

1 June 2005

C.

ICES divisions VII e, f, g,
h, and j

(a) Any bottom-set gillnet

(a) All year

1 January 2006

or entangling net

D.

ICES division VII d

(a) Any bottom-set gillnet

(a) All year

1 January 2007

or entangling net

E. Baltic Sea subdivision 24
area
for

(except
covered under A)

the

(a) Any bottom-set gillnet

(a) All year

1 January 2007

or entangling net

(b) Any drift-net

(b) All year

1 January 2007

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ANNEX II

Technical specifications and conditions of use of acoustic deterrent devices

Any acoustic deterrent devices used in application of Article 2(1) shall meet one of the following sets of signal and
implementation characteristics:

Set 1

Set 2

Signal characteristics

Signal synthesis

Tonal/wide band

Digital

Wide band/tonal

Source levels (max - min) re 1 mPa@1m 145 dB

Analogue

Tonal

130 -150 dB

Fundamental frequency

High-frequency harmonics

Pulse duration (nominal)

Interpulse interval

(a) 20 - 160 KHz wide band sweeps
(b) 10 kHz tonal

10 kHz

Yes

300 ms

(a) 4 - 30 seconds randomised;
(b) 4 seconds

Yes

300 ms

4 seconds

Implementation characteristics

Maximum spacing
acoustic deterrent devices along nets

between

two

200 m, with one acoustic device
fixed at each end of
(or
combination
attached
together)

the net

nets

of

100 m, with one acoustic device fixed
at each end of the net (or combination
of nets attached together)

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Fisheries to be monitored and minimum level of fishing effort subject to on-board observers

ANNEX III

1. General monitoring obligations

Monitoring schemes shall be designed on an annual basis and established to monitor cetacean by-catch, in a represen-
tative manner, in the fisheries defined in the table in paragraph 3.

Monitoring schemes shall be made sufficiently representative by adequately spreading observer coverage over the
fleets, time and fishing areas.

As a general rule, monitoring schemes shall be based on a sampling strategy designed to allow the estimation of the
by-catch rates of cetaceans, for the most frequent species in the by-catch per unit effort by a given fleet to achieve a
coefficient of variation not exceeding 0,30. The sampling strategy shall be designed on the basis of existing informa-
tion on the variability of previous by-catch observations.

2. Pilot monitoring schemes

Where, due to absence of information on variability of by-catch, the sampling strategies cannot be designed to
achieve the coefficient of variation within the limit set in paragraph 1, Member States shall implement pilot on-board
observer schemes for two consecutive years, starting at the dates in paragraph 3 for the concerned fisheries.

These pilot observer schemes shall be based on a sampling strategy aimed at determining the variability of by-catch
which will provide the basis for the design of subsequent sampling strategies under the conditions of the paragraph 1,
and shall also provide estimates of by-catch of cetaceans per unit effort, broken down by species.

The pilot schemes shall cover, at least, the following minimum value of fishing effort:

(a) for all fisheries defined in point 3, with the exception of pelagic trawls (single and pair) from 1 December to

31 March in ICES subareas VI, VII and VIII:

Fleets of more than 400
vessels

Fleets of more than 60 and
less than 400 vessels

Fleets of less than 60 vessels

Minimum effort covered
by the pilot schemes

fishing

The
20 vessels

effort

of

5 % of the fishing effort

5 %, covering at least three
different vessels

(b) for pelagic trawls (single and pair) from 1 December to 31 March in ICES subareas VI, VII and VIII:

Fleets of more than 60 vessels

Fleets of less than 60 vessels

Minimum effort covered by the
pilot schemes

10 % of the fishing effort

10 %,
different vessels

covering

at

least

three

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3. Fisheries to be monitored and monitoring starting dates

Area

Gear

Starting date

A.

ICES subareas VI, VII and VIII.

Pelagic trawls (single and pair)

1 January 2005

B. Mediterranean Sea (of the east of

Pelagic trawls (single and pair)

1 January 2005

line 5°36' west

C.

ICES divisions VI a, VII a and b,
VIII a, b and c, and IX a

Bottom-set gillnet or entangling nets
using mesh sizes equal to or greater
than 80 mm

1 January 2005

D.

E.

ICES subarea IV, division VI a,
and subarea VII with the excep-
tion of divisions VII c and VII k

Driftnets

1 January 2006

ICES subareas III a, b, c,

III d
south of 59° N, III d north of 59°
N (only
to
from 1
30 September), IV and IX

June

Pelagic trawls (single and pair)

1 January 2006

F.

ICES subareas VI, VII and VIII and
IX

High-opening trawls

1 January 2006

G.

ICES sub area

c, d,
excluding the areas referred to in
rows A and E of Annex I

III b,

Bottom-set gillnet or entangling nets
using mesh sizes equal to or greater
than 80 mm

1 January 2006