Decision 2005/938 - 2005/938/EC: Council Decision of 8 December 2005 on the approval of the Agreement on the International Dolphin Conservation Programme - Main contents
30.12.2005 |
EN |
Official Journal of the European Union |
L 348/26 |
COUNCIL DECISION
of 8 December 2005
on the approval on behalf of the European Community of the Agreement on the International Dolphin Conservation Programme
(2005/938/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 37 in conjunction with the first sentence of the first subparagraph of Article 300(2) and the first subparagraph of Article 300(3) thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament (1),
Whereas:
(1) |
The Community is competent to adopt measures for the conservation and management of fishery resources and to enter into agreements with third countries and international organisations. |
(2) |
The Community is a contracting party to the United Nations Convention on the Law of the Sea, which requires all members of the international community to cooperate in conserving and managing the sea's living resources. |
(3) |
The Community is a contracting party to the Agreement on the implementation of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. |
(4) |
In February 1998, the 35th Intergovernmental meeting on the conservation of tunas and dolphins in the Eastern Pacific Ocean adopted the Agreement on the International Dolphin Conservation Programme (hereinafter referred to as the Agreement). The Agreement was signed in Washington on 21 May 1998 and entered into force on 15 February 1999. |
(5) |
At present there are 15 contracting parties to the Agreement these being Bolivia, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru, Spain, United States, Vanuatu and Venezuela. |
(6) |
The objectives of the Agreement include the progressive reduction of incidental dolphin mortalities in the tuna purse-seine fishery in the Eastern Pacific Ocean to levels approaching zero, through the setting of annual limits and the long term sustainability of the tuna stocks in the Agreement Area. |
(7) |
The Community recognises the importance of the Agreement in protecting sustainable fishing as a means of guaranteeing the ecological conservation of species, particularly dolphins. |
(8) |
Community fishermen fish tuna stocks in the Agreement Area and it is in the Community's interest to play an effective role in the implementation of the Agreement. |
(9) |
The Community signed (2) the Agreement, and decided to apply it provisionally (3) until completion of the required procedures for its official accession to the Inter-American Tropical Tuna Commission (IATTC). |
(10) |
Under Article XIV of the Agreement, the IATTC is to have an integral role in coordinating the implementation of the Agreement and many implementing measures will be adopted within the framework of the IATTC. |
(11) |
In parallel, the Kingdom of Spain was authorised to accede to the Convention establishing the IATTC on a temporary basis (4). |
(12) |
The Kingdom of Spain has acceded to the IATTC on June 2003. |
(13) |
The official accession of the Community to the IATTC will take place upon the entry into force of the Convention for the strengthening of the IATTC established by the 1949 Convention between the United States of America and the Republic of Costa Rica (the Antigua Convention), of which the Community is a signatory (5). |
(14) |
Pending the entry into force of the Antigua Convention, the effective participation of the Community in the work of the IATTC and consequently, to all activities and measures decided under the Agreement, is ensured through the Kingdom of Spain's membership of the IATTC on behalf of the Community. |
(15) |
The Community is now therefore in a position to approve the Agreement and fully assume its duties and responsibilities under both the Agreement and the Convention establishing the IATTC, |
HAS DECIDED AS FOLLOWS:
Article 1
The Agreement on the International Dolphin Conservation Programme is hereby approved on behalf of the Community.
The text of the Agreement is attached to this Decision.
Article 2
The President of the Council is hereby authorised to designate the person(s) empowered to deposit the instrument of approval with the Government of the United States of America as Depositary of the Agreement in Accordance with Article XXXII thereof.
Done at Brussels, 8 December 2005.
For the Council
The President
-
J.HUTTON
-
Opinion of 9 June 2005 (not yet published in the Official Journal).
ANNEX I
AGREEMENT AREA
The Agreement Area comprises the area of the Pacific Ocean bounded by the coastline of North, Central and South America and by the following lines:
(a) |
the 40oN parallel from the coast of North America to its intersection with the 150oW meridian; |
(b) |
the 150oW meridian to its intersection with the 40oS parallel; |
(c) |
and the 40oS parallel to its intersection with the coast of South America. |
ANNEX II
ON-BOARD OBSERVER PROGRAMME
1. |
The Parties shall maintain an On-Board Observer Programme in accordance with the provisions of this Annex. As a component of this Programme, each Party may also maintain its own national observer programme, in accordance with the provisions of this Annex. |
2. |
Each Party shall require its vessels with a carrying capacity greater than 363 metric tonnes (400 short tonnes) and that operate in the Agreement Area, to carry an observer during each fishing trip in the Agreement Area. At least 50 % of the observers on the vessels of each Party shall be IATTC observers; the remainder may be from the Party's national observer programme, based on criteria set forth in this Annex as well as any other criteria established by the meeting of the Parties. |
3. |
All observers must:
|
4. |
The duties of the observers shall be, inter alia:
|
5. |
The observers shall:
|
6. |
The responsibilities of the Parties and vessel captains regarding observers shall include the following, inter alia:
|
7. |
The Parties shall:
|
8. |
In a timely manner after each trip observed by an IATTC observer, the Director, in a manner consistent with any applicable confidentiality requirements, is requested to provide to the Party under whose jurisdiction the vessel fished, copies of all raw data, summaries, and reports pertaining to the trip. |
9. |
Notwithstanding other provisions of this Annex, if the Director determines that the placement of an observer from the On-Board Observer Programme is not practical, a vessel subject to the jurisdiction of a Party that fishes in the Agreement Area without setting on dolphins may use a trained observer from another international programme, provided such programme is approved by the Parties, to collect pertinent information for the On-Board Observer Programme, and to confirm to the Director that such vessel does not set on dolphins. |
10. |
No observer shall be assigned to a vessel with a DML unless the vessel's fishing captain is on the list of qualified captains maintained in accordance with Annex VII, paragraph 1(e). |
11. |
Observers from the On-Board Observer Programme may be assigned to vessels of non-Parties at the discretion of the Director, provided the vessel and the vessel captain comply with all the requirements of this Annex, and all other applicable requirements of this Agreement. The Director is requested to inform the Parties of any such assignment in a timely manner. |
12. |
Fees
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13. |
Observer data
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ANNEX III
PER-STOCK, PER-YEAR DOLPHIN MORTALITY CAPS
1. |
The Parties shall establish, at a meeting convened pursuant to Article VIII of this Agreement, a per-stock, per-year dolphin mortality cap for each stock of dolphins, determined by the meeting of the Parties, based on the best available scientific evidence, of between 0,2 % and 0,1 % of the Minimum Estimated Abundance (Nmin) as calculated by the US National Marine Fisheries Service or equivalent calculation standard as might be developed or recommended by the Scientific Advisory Board but in no event shall the total annual incidental dolphin mortality exceed 5 000, consistent with the provisions of this Agreement. In the year 2001 and thereafter, the per-stock, per-year cap shall be 0,1 % of Nmin. |
2. |
The Parties shall conduct in 1998, or as soon as possible thereafter, a scientific review and assessment of progress toward the year 2001 objective, and consider recommendations as appropriate. Up to the year 2001, in the event that annual mortality of 0,2 % of Nmin is exceeded for any stock of dolphins, all sets on that stock and on any mixed schools containing members of that stock shall cease for that year. Beginning in the year 2001, in the event that annual mortality of 0,1 % of Nmin is exceeded for any stock of dolphins, all sets on that stock and on any mixed schools containing members of that stock shall cease for that year. In the event that annual mortality of 0,1 % of Nmin is exceeded for either eastern spinner or north-eastern spotted dolphin stocks, the Parties shall conduct a scientific review and assessment and consider further recommendations. |
3. |
For purposes of this Agreement, the Parties shall use the current estimate of absolute abundance for the dolphin stocks of the Eastern Pacific Ocean presented by Wade and Gerrodette to the International Whaling Commission in 1992, based on US National Marine Fisheries Service research vessel data for the period 1986 to 1990, until the Parties agree on an updated set of figures. Such updates could result from the analysis of data from future research cruises and indices of abundance and other relevant scientific data from the Parties, the IATTC and other scientific organisations. |
4. |
The Parties shall establish a system, based on real-time observer reporting, to ensure effective implementation and compliance with the per-stock, per-year dolphin mortality cap. |
5. |
Within six months of the entry into force of this Agreement, the Parties shall establish a system for the allocation of the per-stock, per-year dolphin mortality cap for each stock for the ensuing year and years thereafter. This system shall provide for the distribution of the mortality limits in paragraph 1 of this Annex among vessels of the Parties which are eligible for Dolphin Mortality Limits, in accordance with Annex IV. When establishing this system, the Parties shall consider the best available scientific evidence on the distribution and abundance of the stocks in question, and other variables which the meeting of the Parties shall define at a later date. |
ANNEX IV
Dolphin Mortality Limits (DMLs)
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I.ASSIGNMENT OF DMLS
1. |
|
2. |
The IRP shall, by 1 November of each year, or later if agreed by the IRP, provide to the Parties a list of qualified applicant vessels eligible to receive a full-year DML for the following year. For second-semester DMLs, the IRP shall, by 1 May of each year, or later if agreed by the IRP, provide to the Parties a list of qualified applicant vessels eligible to receive a second-semester DML for that same year. |
3. |
For purposes of this Agreement, a vessel shall be considered qualified if:
|
4. |
A vessel shall not be considered qualified under paragraph 2 if, on the date of the request pursuant to paragraph 1 of this Annex, the vessel is operating under the jurisdiction of a Party whose applicable laws and regulations prohibit vessels under its jurisdiction from fishing for tuna in association with dolphins; nor shall DMLs be assigned to any Party in order to provide permits for fishing in the Agreement Area to vessels flying the flag of another State whose applicable laws and regulations prohibit vessels under its jurisdiction from fishing for tuna in association with dolphins. |
5. |
98 %, or such other unreserved portion as the Parties might determine, of the overall dolphin mortality limit for the fishery (5 000 or such other lower limit as the Parties might determine) shall be used to calculate into an average individual vessel DML (ADML) and distributed among the Parties for the succeeding year, as set forth in paragraph 5 of this section. |
6. |
The ADML shall be calculated by dividing the unreserved portion of the overall DML for the fishery established under paragraph 4 by the total number of qualified vessels requesting full-year DMLs. The distribution of DMLs among Parties shall be determined by multiplying the ADML by the number of qualified vessels requesting full-year DMLs and operating under the jurisdiction of each Party. |
7. |
The remaining 2 %, or such other portion as the Parties might determine, of the overall DML for the fishery shall be maintained as a separate Reserve DML Allocation (RDA), to be managed at the discretion of the Director. Any Party may request that the Director assign DMLs from such RDA to vessels fishing under its jurisdiction which do not normally fish for tuna in the Agreement Area but which may, from time to time, desire to participate in the fishery in the Agreement Area on a limited basis, provided that such vessels and their captains and crews meet the operational and training requirements set forth in Annex VIII of this Agreement and that the requirements set forth in paragraphs 2 and 3, of this section are met. Any accidental mortalities caused by vessels operating in the Agreement Area under the jurisdiction of any of the Parties that have not requested DMLs for their fleet shall also be deducted from this RDA. |
8. |
No DML shall be assigned to a vessel unless, in the last year that it had a DML prior to the year in which it is applying for a DML, at least 5 % of the total number of the sets made by the vessel were on dolphins, and the average catch of yellowfin in its sets on dolphins was at least 3 metric tonnes per set. Otherwise, the vessel cannot receive a DML in the following year, unless there are reasons of force majeure, as agreed pursuant to Annex IV of this Agreement, that prevented it from complying with these requirements. A vessel applying for a DML for the first time shall not be subject to this provision. |
9. |
No DML shall be assigned to a vessel which has been determined by the Parties to have engaged in a pattern of violations, as confirmed through enforcement actions taken against such vessel by the Party under whose jurisdiction it operates, which diminish the effectiveness of the International Dolphin Conservation Programme. |
10. |
The individual Parties with qualified vessels that will be fishing for tuna in association with dolphins shall manage their DMLs in a responsible manner, provided that no individual vessel shall receive a total annual DML in excess of the DML established for 1997 by the IRP, and reported in the minutes of the 14th meeting of the IRP, held on 19 and 20 February 1997, under the La Jolla Agreement. No Party shall allocate to the total of its qualified vessels a greater number of DMLs than those that such Party has been allocated under Sections I and III of this Annex. No initial assignment of DMLs may result in any vessel receiving a DML in excess of the ADML unless its performance in reducing dolphin mortalities, as measured by the IRP based upon the previous two years' data, is better than the average performance of the international fleet as a whole. No initial assignment of DMLs may result in any vessel receiving a DML in excess of the ADML if, during the previous two years, it has committed any of the infractions identified in Section III, paragraph 4 of this Annex, subject to the conditions established pursuant to that paragraph. |
11. |
Should the total mortalities of the fleet of any Party meet or exceed the total amount of DML distributed to it pursuant to this Annex, fishing for tuna in association with dolphins shall cease for all vessels operating under the jurisdiction of that Party. |
12. |
Each Party shall, no later than 1 February of each year, notify the Director of the initial allocation of its distributed DML among its fleet. No vessel may begin fishing for tunas associated with dolphins until the Director receives such notification. |
II. UTILISATION OF DMLS
1. |
Any vessel which is assigned a full-year DML and does not set on dolphins prior to 1 April of that year, or which is assigned a second-semester DML and does not set on dolphins by 1 October of that year, or which is assigned a per-trip DML from the RDA and does not set on dolphins during that trip, unless as a result of force majeure or extraordinary circumstances, as agreed by the IRP, shall lose its DML and may not set on dolphins for the remainder of that year. Notwithstanding the provision in Annex VII, paragraph 9, regarding decision making by the IRP, a request by a Party, on behalf of any of its vessels, for an exemption due to force majeure or extraordinary circumstances, shall be considered to be agreed by the IRP unless a majority of the government members of the IRP supports any objection, made formally and with cause by any other Party, to any such request. All requests for exemption must be sent to the secretariat by 1 April, and any formal objections must be sent to the Secretariat by 20 April. Any such vessel that loses its DML on two consecutive occasions shall not be eligible to receive a DML for the following year. |
2. |
Within six months following entry into force of this Agreement, the IRP, in cooperation with the scientific staff of the IATTC, shall develop and recommend a system by which to measure DML utilisation in order to deter frivolous requests for DMLs. Such recommended system shall be presented for consideration by the meeting of the Parties. |
III. USE OF FORFEITED OR UNUTILISED DMLS
1. |
After 1 April of each year, any DMLs which the Director determines will not be utilised pursuant to Section II or which have otherwise been forfeited shall be reallocated to the Parties consistent with this Section. |
2. |
No later than 1 May of each year, the full-year DMLs assigned to those vessels that have not utilised them, pursuant to Section II, or have otherwise forfeited them, shall be redistributed among the Parties by the Director, consistent with the formula established pursuant to Section I, paragraph 5, but after first adjusting such formula as set forth in subparagraphs (a), (b) and (c) below. Such additional DMLs may be reallocated by the individual Parties among qualified vessels under the jurisdiction of such Party, subject to limitations and conditions set forth in paragraphs 3, 4, 5, 6 and 7 of this section.
|
3. |
Any Party may adjust the DMLs of its qualified vessels which meet the criteria set forth in Section I, paragraph 2, of this Annex either upward or downward, provided that no vessel is assigned an adjusted DML in excess of 50 % above its initial DML, unless its performance in successfully reducing dolphin mortalities, as measured by the IRP, is in the upper 60 % of the performance of the international fleet as a whole, as determined by the IRP, based upon the prior year's data. A Party making such an adjustment shall so notify the Director no later than 20 May and no such adjustment shall take effect until the Director has been notified. |
4. |
No vessel may have its initial DML adjusted upward by any Party if the IRP had determined, and the Party with jurisdiction over the vessel concurs, that during that year or the previous two years:
For infractions described in (a), (b), (c), (d), (f), and (g), a Party will be deemed to have provided such concurrence if it does not object to the IRP within six months of a referral of a possible violation from the IRP. For the infraction described in (e), a Party will be deemed to have provided such concurrence if it does not object to the IRP within 12 months of such referral. A notification by a Party that the possible infraction is being investigated shall be considered to be an objection for the purposes of this paragraph, provided that the notification is received by the secretariat prior to the expiration of the relevant 6 or 12 month period. In such cases, a Party will be deemed to have provided its concurrence to the infraction if that Party does not conclude its investigation and report the final results to the IRP within a period of two years from the date on which the possible infraction was originally referred to the Party, except as provided in the following paragraph. If it is not possible for the Party in question to complete the investigation within this two-year period, the Party shall provide an update to the IRP of the status of the investigation and its estimated date of completion. The Party shall provide such a report at each subsequent meeting of the IRP until the case is resolved. If a report is not made, that Party will be deemed to have concurred with the possible infraction. The secretariat shall inform the relevant Party about the cases for which the deadline is about to lapse and for which the information needs to be updated. |
5. |
No vessel may be eligible to receive an additional allocation of DML by a Party unless it has on board all of the required dolphin safety gear and equipment throughout the year; and no such upward allocation may be made for a vessel which has exceeded its initial DML prior to 1 April, unless due to force majeure or extraordinary circumstances, as agreed by the meeting of the Parties, in consultation with the IRP. |
6. |
For any vessel exceeding its DML, as it may be adjusted pursuant to this Annex, during a given year, the amount of such excess, plus an additional 50 % of that amount, unless the IRP recommends otherwise, shall be deducted from DMLs assigned to that vessel by a Party under whose jurisdiction the vessel operates over subsequent years in a manner prescribed by the IRP. |
7. |
If at any time a vessel meets or exceeds its DML, as it may be adjusted pursuant to this Annex, that vessel shall immediately cease all fishing for tuna in association with dolphins. |
IV. IMPLEMENTATION
1. |
The Parties shall ensure that in the implementation of the DML system established by this Annex, the per-stock, per-year dolphin mortality caps, as specified in Annex III, are not exceeded. |
2. |
In cases involving unusual or extraordinary circumstances not foreseen in this Annex, the Parties, as recommended by the IRP, may take such measures as are necessary, consistent with the provisions of this Annex, in order to implement the DML system. |
3. |
If the mortality in any given year increases above levels which the IRP considers to be significant, the IRP shall recommend that the Parties hold a meeting to review and identify the causes of mortality and formulate options to address such causes. |
ANNEX V
SCIENTIFIC ADVISORY BOARD
1. |
The Parties shall maintain the Scientific Advisory Board of technical specialists established pursuant to the La Jolla Agreement to assist the Director in matters regarding research to:
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2. |
The functions and responsibilities of the Board shall be to:
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3. |
The Board will consist of no more than 10 members, no more than two of whom shall be from any one country, selected from the international community of scientists, fishing gear experts, the fishing industry, and environmentalists. The members will be proposed by the Director on the basis of their technical expertise, and each one will be subject to approval by the Parties. |
ANNEX VI
National Scientific Advisory Committees
1. |
The functions of the National Scientific Advisory Committees (NATSACs), established in accordance with Article XI of this Agreement, shall be, inter alia, to:
|
2. |
Reports of the NATSACs, including of their cooperative meetings, shall be made available to the Parties and the public, in a manner consistent with any applicable confidentiality requirements. |
3. |
The Director may convene, in addition to the meetings pursuant to Article XI, paragraph 3, meetings with the purpose of facilitating consultation among the NATSACs. |
4. |
The functions of the meetings of the NATSACs shall be to:
|
5. |
The NATSAC members from any Party who attend the meeting shall be designated by that Party. |
ANNEX VII
International Review Panel
1. |
In compliance with Article XII of this Agreement, the International Review Panel (IRP) shall have the following functions:
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2. |
The IRP shall be made up of representatives of the Parties (governmental members), three representatives of non-governmental environmental organisations with recognised experience in matters pertaining to this Agreement and with offices in the territory of a Party, and three representatives from the tuna industry that operates under the jurisdiction of any of the Parties in the Agreement Area (non-governmental members). |
3. |
The non-governmental members shall have a two-year term of membership, starting at the first meeting of the IRP immediately after their election. |
4. |
The non-governmental members will be elected in accordance with the following procedure:
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5. |
The IRP shall hold at least three meetings a year, one of which will preferably be held on the occasion of the ordinary meeting of the Parties. |
6. |
The IRP may convene additional meetings at the request of at least two of the Parties, provided that a majority of the Parties support the request. |
7. |
The IRP meetings shall be chaired by a Presider elected by the governmental members at the beginning of each meeting, who shall decide on matters of order. Any member shall have the right to ask that any decision made by the Presider be decided as specified in paragraph 9 of this Annex. |
8. |
The meetings shall be in Spanish and English, and IRP documents shall also be produced in both languages. |
9. |
The decisions at the meetings of the IRP shall be adopted by consensus among the governmental members. |
10. |
The following criteria shall be applied to attendance at IRP meetings:
|
11. |
In cases of urgency, and without prejudice to the provisions of paragraph 9 of this Annex, the IRP may take decisions by correspondence through a vote of the governmental members, under the following procedures:
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12. |
The Director will carry out the functions of the Secretary, which shall include:
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13. |
The rules of procedure of the IRP may be modified by the meeting of the Parties. Modifications may be recommended by the IRP. |
14. |
The members of the IRP and any other participants invited to attend IRP meetings as observers shall treat all the information presented at such meetings in accordance with the provisions of confidentiality set forth in Article XVIII of this Agreement. |
ANNEX VIII
OPERATIONAL REQUIREMENTS FOR VESSELS
1. |
For the purposes of this Annex:
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2. |
Dolphin safety gear and equipment requirements A vessel with a carrying capacity of more than 363 metric tonnes (400 short tonnes) operating in the Agreement Area shall:
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3. |
Dolphin protection and release requirements and prohibitions A vessel with a carrying capacity of more than 363 metric tonnes (400 short tonnes) operating in the Agreement Area shall:
It is emphasised that the above requirements should not lead to crewmen being placed in situations that present unnecessary risks to their personal safety. |
4. |
Exceptions
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5. |
Treatment of observers Captains, crew, and other personnel shall comply with their responsibilities regarding the presence of observers aboard their vessels, as specified in Annex II, paragraph 6. |
6. |
Vessels under 363 metric tonnes (400 short tonnes) No vessel with a carrying capacity of 363 metric tonnes (400 short tonnes) or less may intentionally set on dolphins. |
ANNEX IX
Elements of a tuna tracking and verification programme
1. |
Pursuant to Article V, paragraph 1(f), the Parties shall establish a programme to track and verify tuna harvested by vessels in the Agreement Area, based on the following elements:
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2. |
Each Party shall implement this programme in its respective territory, on vessels subject to its jurisdiction and in marine areas with respect to which it exercises sovereignty or sovereign rights and jurisdiction. |
ANNEX X
GUIDELINES AND CRITERIA FOR THE PARTICIPATION OF OBSERVERS AT A MEETING OF THE PARTIES
1. |
The Director shall invite to meetings of the Parties convened pursuant to Article VIII intergovernmental organisations whose work is relevant to the implementation of this Agreement, as well as non-Parties whose participation may promote implementation of this Agreement. |
2. |
Non-governmental organisations (NGOs) with recognised experience in matters pertaining to this Agreement shall be eligible to participate as observers in all meetings of the Parties convened pursuant to Article VIII except meetings held in executive session or meetings of Heads of Delegation. |
3. |
Any NGO desiring to participate as an observer in a meeting of the Parties shall notify the Director of its desire to participate at least 50 days in advance of the meeting. The Director shall notify the Parties of the names of such NGOs at least 45 days prior to the beginning of the meeting. |
4. |
If a meeting of the Parties is held with less than 50 days notice, the Director shall have greater flexibility concerning the timing of the sending of the invitations. |
5. |
An NGO desiring to participate as an observer may do so unless a majority of the Parties formally objects for cause in writing at least 30 days prior to the beginning of the meeting in question. |
6. |
Any participating observer may:
|
7. |
The Director may require NGO observers to pay reasonable fees, and to cover costs attributable to their attendance (e.g. copying expenses). |
8. |
All observers admitted to a meeting of the Parties shall be sent or otherwise provided the same documentation generally available to Parties, except documentation containing business-confidential data. |
9. |
All observers admitted to a meeting of the Parties shall comply with all rules and procedures applicable to other participants in the meeting. |
This summary has been adopted from EUR-Lex.