Fisheries (Amendment) Act 2003

PART 1 Preliminary and General

1. Short title, collective citation and construction.

1.—(1) This Act may be cited as the Fisheries (Amendment) Act 2003.

(2) The Fisheries Acts 1959 to 2001 and this Act (other than section 32 and section 2 in so far as it relates to section 32) may be cited together as the Fisheries Acts 1959 to 2003 and shall be construed together as one.

(3) The Foreshore Acts 1933 to 1998, section 32 and section 2 in so far as it relates to section 32, may be cited together as the Foreshore Acts 1933 to 2003 and shall be construed together as one.

2. Interpretation.

2.—(1) In this Act, unless the context otherwise requires—

“Act of 1983” means Fisheries (Amendment) Act 1983;

“Act of 1994” means Fisheries (Amendment) Act 1994;

“appeal” means an appeal under section 7;

“Appeals Officer” means a person appointed under section 6 as an Appeals Officer for the purposes of Part 3 of this Act;

“licence” in Parts 2 and 3 of this Act, means a sea-fishing boat licence granted under F1[section 4(3)];

“licensing authority” has the meaning assigned to it by section 3;

“local authority” has the meaning assigned to it by the Local Government Act 2001;

“Minister” means the Minister for Communications, Marine and Natural Resources;

“Principal Act” means Fisheries (Consolidation) Act 1959.

(2) In this Act—

(a) a reference to any enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended or extended by or under any subsequent enactment including this Act when enacted,

(b) a reference to a section or Schedule is a reference to a section of, or Schedule to, this Act unless it is indicated that reference to some other enactment is intended,

(c) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

PART 2 Licensing of Sea-Fishing Boats and Certain Sea-Fishing

3. Licensing authority.

3.—(1) The licensing authority in relation to sea-fishing boats shall be—

(a) the Registrar General of Fishing Boats, or

(b) acting under the superintendence of the Registrar General of Fishing Boats, the Deputy Registrar General of Fishing Boats.

(2) The licensing authority shall be independent in the exercise of his or her functions under this Part subject to—

(a) the law for the time being in force in relation to sea-fishing boat licensing, including, in particular, the legal obligations of the State arising under any law of an institution of the European Communities or other international agreement which is binding on the State, and

(b) such policy directives in relation to sea-fishing boat licensing as the Minister may give in writing from time to time.

F2[(3) A policy directive given undersubsection 2(b)may provide for measures to control and regulate the capacity, structure, equipment, use and operation of sea-fishing boats for the purpose of protecting, conserving or allowing the sustainable exploitation of living marine aquatic species or the rational management of fisheries, in furtherance of national policy objectives and to comply with requirements of the common fisheries policy of the European Communities or other international obligations which are binding on the State.]

(4) Where the Minister gives a policy directive under subsection (2)(b), a notice of such directive and details of it (including reasons for giving the directive) shall, as soon as practicable after the directive is given, be laid before each House of the Oireachtas and published in Iris Oifigiúil.

(5) Subsection (2)(b) shall not be construed as enabling the Minister to exercise any power or control in relation to any particular case or group of cases with which the licensing authority is or may be concerned.

(6) (a) The licensing authority shall—

(i) maintain a register of licences (which shall be known as the Register of Sea-fishing Boat Licences) in electronic form capable of being read in legible form and satisfying the requirements from time to time of any law of an institution of the European Communities, and

(ii) give to the Minister such information relating to the performance of the functions of the licensing authority as the Minister may from time to time request.

(b) The licensing authority may, on his or her own initiative, or at the request of the Minister, make submissions or recommendations to the Minister on any matter relating to the functions of the licensing authority or to licensing under F2[section 4].

(7) The licensing authority shall, as soon as practicable but not later than 6 months after the end of each financial year, report to the Minister on the performance of the functions of the licensing authority in that year and the Minister shall cause copies of the report to be laid before each House of the Oireachtas.

(8) The licensing authority shall cause to be published by electronic means capable of being read in legible form details of—

(a) all applications for licences received after 1 January 2003,

(b) all decisions made after 1 January 2003 on any such application or to amend or revoke a licence.

(9) (a) Anything commenced before the passing of this Act by or under the authority of the Minister under F2[section 4(3)] may be carried on or completed on or after such passing by the licensing authority.

(b) Every licence granted by or under the authority of the Minister which is in force immediately before the passing of this Act shall be deemed to have been granted by the licensing authority under F2[section 4(3)] and references to the Minister in any such licence shall after the passing of this Act be construed as a reference to the licensing authority.

F3[(9A) The licensing authority is not liable in any proceedings for anything done in good faith in the purported exercise of his or her powers in relation to granting or renewing sea-fishing boat licences or maintaining the Register of Fishing Boats.]

(10) In this section, “the Registrar General of Fishing Boats” and “the Deputy Registrar General of Fishing Boats” mean, respectively, the Registrar General of Fishing Boats and the Deputy Registrar General of Fishing Boats appointed under F2[section 74 of the Sea-Fisheries and Maritime Jurisdiction Act 2006].

4. Sea-fishing boat licences.

F4[4.—(1) This section applies to any Irish sea-fishing boat.

(2) A sea-fishing boat to which this section applies shall not be used for sea-fishing (whether within the exclusive fishery limits of the State or otherwise) nor shall a person on board such a boat fish for sea-fish or attempt so to fish, save under and in accordance with a licence ("sea-fishing boat licence") granted or renewed for the purposes of this section and in relation to the boat by the licensing authority.

(3) (a) The licensing authority may grant sea-fishing boat licences for such period as is specified in the licence.

(b) An application for a sea-fishing boat licence shall be—

(i) made to the licensing authority,

(ii) in such form and contain such particulars as the licensing authority may specify, and

(iii) made by or on behalf of the owner of the boat in respect of which theF5[application is made,]

F6[(iv) where the applicant is a natural person, made by a person who is over 18 years of age at the date of the application.]

(c) Where an application is made for a sea-fishing boat licence, the licensing authority may, subject tosubsection (5), allow or refuse the application.

(d) In deciding on the grant or refusal of a sea-fishing boat licence or the attachment of terms and conditions to licences the licensing authority may take account of economic and social benefits which the operation of a boat would be likely to contribute to the coastal communities and regions which the quotas within the meaning of Council Regulation No. 2371/2002 of 20 December 2002^3are designed to benefit, including—

(i) the projected annual number of landings at ports in the State,

(ii) the projected annual tonnage and value of fish landed in the State,

(iii) the projected annual level of expenditure in the State on wages, fuel, supplies, equipment and services, and

(iv) the projected annual level of social security and tax payments in the State in respect of employees and the operation of the boat, and the protection, conservation and sustainable exploitation of living marine aquatic species and requirements of the Common Fisheries Policy of the European Communities.

(4) (a) The licensing authority may renew a sea-fishing boat licence, without the holder or the licensee making an application undersubsection 3(b), for such period or periods as he or she may consider appropriate.

(b)Section 7of this Act does not apply to the renewal of a licence underparagraph (a).

(5) The licensing authority shall not grant a sea-fishing boat licence unless the sea-fishing boat in relation to which the licence is granted is wholly owned by a national of a Member State or a state belonging to the European Economic Area or a body corporate established under and subject to the law of a Member State and having its principal place of business in a Member State or a state belonging to the European Economic Area.

(6) Where a sea-fishing boat is owned by a body corporate, the name, address and nationality of the beneficial owner or owners of the shares in, or of the person or persons who otherwise controls or control, the body corporate, shall be given to the licensing authority—

(a) on application for a sea-fishing boat licence in respect of the boat, or

(b) where a sea-fishing boat licence is in force in respect of the boat, if there is any change in such ownership or control.

(7) (a) A body corporate which is applying for a sea-fishing boat licence or holds a sea-fishing boat licence must have an agent in the State and give the licensing authority the name and address of the agent and details of contacting the agent at any time by or on behalf of the licensing authority.

(b) The licensing authority may, as the case may be, refuse to grant or suspend (for such period as he or she sees fit) or revoke a sea-fishing boat licence where he or she considers that a body corporate is not complying withparagraph (a)to the satisfaction of the authority.

(8) (a) The licensing authority may attach to a sea-fishing boat licence such terms (including terms specifying an event or other circumstances on the occurrence of which the licence is to come into force or cease to be in force) and conditions (including conditions precedent to the licence’s becoming operative) as he or she shall think fit and he or she may also attach further terms or conditions to or vary the terms or conditions already attached to such a licence or remove any such terms or conditions.

(b) Without prejudice to the generality ofparagraph (a), a term or condition attached to a sea-fishing boat licence may—

(i) restrict sea-fishing by the boat to which the licence relates in a manner specified in the term or condition,

(ii) require that for so long as the licence is in force the members of the crew of such boat, or of any proportion of such members specified in the condition, shall be of a nationality specified in the term or condition, or

(iii) specify an event or other circumstance on the occurrence of which the licence shall cease to be in force.

(c) Where the licensing authority is satisfied that a person has fished in contravention of a term or condition attached to a sea-fishing boat licence or that a person has attempted so to fish, the licensing authority may, if he or she thinks fit, revoke or suspend (for such period as he or she sees fit) the licence.

(9) (a) It is a condition of a sea-fishing boat licence that the licensee shall ensure that the licensed boat complies with requirements specified by or under the Merchant Shipping Acts 1894 to 2005.

(b) Where by or under the Merchant Shipping Acts 1894 to 2005 a survey is required to be carried out of a sea-fishing boat for the purpose of establishing whether or not such boat complies with the requirements specified by or under those Acts, the licensing authority shall not grant or renew a sea-fishing boat licence in respect of the boat unless the licensing authority is satisfied that the boat complies with such requirements.

(c) Where a code of practice published by the Minister for Transport relating to the safety and sea-worthiness of sea-fishing boats of a class to whichparagraph (b)does not apply requires a survey to be carried out of a sea-fishing boat of such class for the purpose of establishing whether or not such boat complies with the requirements specified in the code of practice, the licensing authority shall not grant or renew a sea-fishing boat licence in respect of the boat unless a declaration of compliance with the code of practice has been provided to the licensing authority.

(10) (a) The holder of a sea-fishing boat licence suspended or revoked undersubsection (7)(b)or(8)(c)shall, as soon as practicable, surrender the licence to the licensing authority.

(b) A person who fails to comply withparagraph (a)of this subsection commits an offence and is liable on summary conviction to a fine not exceeding €500.

(c) Where a licence has been suspended undersubsection (7)(b) or(8)(c)the District Court may, upon application to it, direct the licensing authority to re-issue and return the licence or it may reduce the period of suspension.

(11) Without prejudice to the generality ofsubsection (3)(c)where the licensing authority receives an application for a sea-fishing boat licence and—

(a) the application relates to a sea-fishing boat which is owned by a body corporate and the licensing authority is not satisfied that the body corporate is under the control of, beneficially owned by or under the control of and beneficially owned by a person or persons who, or, as may be appropriate, each of whom, is either a qualified individual or a qualified body, or

(b) the licensing authority is satisfied that the applicant has previously used or attempted to use a sea-fishing boat for sea-fishing in contravention of, or that the applicant has fished for sea-fish or has attempted so to fish contrary to,subsection (2),

he or she may refuse the application.

(12) (a) Where the holder of a sea-fishing boat licence—

(i) ceases to be the owner of the sea-fishing boat to which the licence relates, or

(ii) is a body corporate which ceases to be under the control of or beneficially owned by or under the control of and beneficially owned by a person or persons who, or, as may be appropriate, each of whom, is either a qualified individual or a qualified body,the licence ceases to have effect and the holder of the licence shall, as soon as practicable, deliver the licence to the licensing authority.

(b) A person who fails to comply withparagraph (a)commits an offence and is liable on summary conviction to a fine not exceeding €500.

(13) (a) A person who uses or attempts to use a sea-fishing boat in contravention ofsubsection (2)commits an offence.

(b) A person who, while on board a sea-fishing boat, fishes for sea-fish or attempts to so fish in contravention ofsubsection (2)commits an offence.

(14) In this section—

"Irish sea-fishing boat" means a sea-fishing boat which is—

(a) entered in the Register of Fishing Boats maintained under section 74 of the Sea-Fisheries and Maritime Jurisdiction Act 2006,

(b) required by regulations under section 76 of that Act to be so entered, or

(c) exempt from such registration by regulations under that section;

"qualified body" means a body corporate in which all of the shares are beneficially owned, or the body is otherwise controlled, by one or more individuals who, or, as may be appropriate, each of whom is, a qualified individual;

"qualified individual" means an individual person who is a national of a Member State or a state belonging to the European Economic Area;

"licensing authority" has the meaning assigned to it bysection 3;

"Member State" means a Member State of the European Communities.]

5. Licence application, licence and other fees.

5.—(1) An application for—

(a) a sea-fishing boat licence,

F7[(b) an authorisation undersection 13or a licence, authorisation or permit under any regulation made under section 14 or 15 of the Sea-Fisheries and Maritime Jurisdiction Act 2006 orsection 25F8[…],]

(c) amendment of any such licence, authorisation or permit,

shall be subject to such fee as the Minister may, with the consent of the Minister for Finance, prescribe by regulations.

(2) The grant of—

(a) a sea-fishing boat licence or a licence under section 16 by an Appeals Officer, or

F7[(b) an authorisation undersection 13or a licence, authorisation or permit under any regulation made under section 14 or 15 of the Sea-Fisheries and Maritime Jurisdiction Act 2006 orsection 25F8[…],]

shall be subject to such fee, as the Minister may, with the consent of the Minister for Finance, prescribe by regulations.

(3) Regulations under this section may provide for fees of different amounts in respect of applications referred to in subsection (1) or the grant of a licence, authorisation or permit referred to in subsection (2) of different categories and in different circumstances.

(4) Where under regulations made under this section a fee is payable in respect of any application referred to in subsection (1) or the grant of a sea-fishing boat licence or other licence, authorisation or permit referred to in subsection (2)(b), the application shall not be considered or the licence, authorisation or permit granted by the F7[licensing authority, the Minister or an appeals officer], as the case may be, unless the Department of Communications, Marine and Natural Resources is in receipt of the fee.

(5) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.