The Registration of Fish Sellers and Buyers and Designation of Auction Sites (Scotland) Regulations 2005

Made: 26th May 2005

Laid before the Scottish Parliament: 26th May 2005

Coming into force in accordance with regulation 1(2)

The Scottish Ministers, in exercise of the powers conferred by section 2(2) of the European Communities Act 1972[^f00001] and of all other powers enabling them in that behalf, hereby make the following Regulations:

Citation, commencement and extent

1

• (1) These Regulations may be cited as the Registration of Fish Sellers and Buyers and Designation of Auction Sites (Scotland) Regulations 2005.

• (2) These Regulations shall come into force in accordance with this paragraph–

• (a) regulations 1 to 3, 6, 7, 9 and 12 to 18 shall come into force on 20th June 2005; and

• (b) regulations 4, 5, 8, 10 and 11 shall come into force on 1st September 2005.

• (3) Subject to paragraph (4), these Regulations extend to Scotland and the Scottish zone and insofar as they extend beyond Scotland and the Scottish zone, they do so only as a matter of Scots law.

• (4) Proceedings for an offence under these Regulations may be taken, and for all incidental purposes the offence may be treated as having been committed, in any place in the United Kingdom.

Interpretation

2

• (1) In these Regulations–

• “Article 9” means Article 9 of Council Regulation (EEC) No. 2847/93 establishing a control system applicable to the Common Fisheries Policy[^f00002] as last amended by Council Regulation (EC) No. 806/2003[^f00003] and any reference to a paragraph of Article 9 shall be interpreted accordingly;

• “the CFP Regulation” means Council Regulation 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy[^f00004];

• “designated auction site” means a site where fish are marketed which has been designated by the Scottish Ministers under regulation 6(3);

• “equivalent provision” means any provision in any other regulations made under section 2(2) of the European Communities Act 1972 for the purposes of implementing Article 9 or Article 22 of the CFP Regulation, extending to any part of the United Kingdom, which has equivalent effect to a specified provision in these Regulations;

• “first sale fish” means fish which are being sold for the first time but does not include farmed fish;

• “fish” means fishery products to which Article 9 or Article 22 of the CFP Regulation applies and which are landed from a fishing vessel;

• “licensed fishing vessel” means a fishing vessel in respect of which a licence has been issued under section 4 of the Sea Fish (Conservation) Act 1967[^f00005] or under similar provisions by another Member State or by another country;

• “PLN number” means a vessel’s port letters and number within the meaning of regulation 31 of the Merchant Shipping (Registration of Ships) Regulations 1993[^f00006];

• “registered fish buyer” means a person who is registered by the Scottish Ministers in accordance with regulation 7;

• “registered fish seller” means a person who is registered by the Scottish Ministers in accordance with regulation 3.

• “Scottish fishing boat” means a fishing boat which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995[^f00007] and whose entry in the register specifies a port in Scotland as the port to which the vessel is to be treated as belonging; and

• “the Scottish zone” has the same meaning as in section 126(1) of the Scotland Act 1998[^f00008].

• (2) In these Regulations, any reference to a registered fish buyer or registered fish seller shall include an agent who buys or sells fish on behalf of the buyer or seller, and any similar expressions shall be interpreted accordingly.

Registration of fish sellers

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• (1) A registered fish seller is authorised for the purposes of Article 9(1), insofar as that seller sells first sale fish by way of competitive bidding at a designated auction site.

• (2) Any person may apply to the Scottish Ministers to be registered as a fish seller.

• (3) Such an application shall be in writing, shall be made in such form and manner, shall include such information and undertakings and shall be delivered to such address as the Scottish Ministers may specify in a notice or from time to time require.

• (4) On receipt of such an application the Scottish Ministers may–

• (a) register the applicant;

• (b) determine conditions to which the registration shall be subject; and

• (c) require the applicant to provide such undertakings as the Scottish Ministers consider appropriate to the application.

• (5) The Scottish Ministers shall in writing–

• (a) notify applicants of the result of their applications;

• (b) notify applicants whose applications for registration have been approved of any conditions which they have determined or undertakings required under paragraph (4); and

• (c) notify applicants whose applications for registration have been approved of the registration number allocated to them for the purposes of these Regulations.

• (6) The Scottish Ministers shall publish the fact that a person is a registered fish seller in such manner as they see fit.

• (7) Any registered fish seller who fails to comply with any–

• (a) condition to which the registration of that seller is subject; or

• (b) undertaking provided,

is guilty of an offence.

• (8) Any person who knowingly or recklessly makes a statement which is false in a material particular in an application under this regulation is guilty of an offence.

Sale of fish

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• (1) Any person who–

• (a) sells first sale fish by any form of competitive bidding in a designated auction site; and

• (b) is not a registered fish seller,

is guilty of an offence.

• (2) Where first sale fish is sold from a fishing vessel to a buyer who is not a registered fish buyer the master, owner or charterer (if any) of the fishing vessel is guilty of an offence.

Maintenance of records by registered seller

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• (1) Subject to paragraph (2), a registered fish seller shall maintain records of each sale of first sale fish made by that seller at the place in the United Kingdom notified to the Scottish Ministers for that purpose in the registered fish seller’s application for registration.

• (2) Where a registered fish seller does not operate that seller’s business from the United Kingdom or where a registered fish seller is not established in the United Kingdom, a registered fish seller shall–

• (a) send records of every sale of first sale fish made by the seller to the Scottish Ministers by 31st December in each year; and

• (b) produce those records to the Scottish Ministers within 28 days of a request from a British sea fisheries officer under paragraph (5) to produce those records.

• (3) The records referred to in this regulation shall include all of the following information in relation to each sale–

• (a) date and location of the sale;

• (b) quantities of each species sold;

• (c) price paid for each species sold;

• (d) name and PLN number of the vessel which landed the fish;

• (e) name and address of the buyer; and

• (f) reference number of the contract of sale or invoice.

• (4) A registered fish seller shall keep the records of each sale as required by this regulation until the end of the second calendar year following that sale.

• (5) Subject to paragraph (2)(b), a registered fish seller shall, upon the request of a British sea fishery officer, produce the records referred to in this regulation.

• (6) A registered fish seller who fails to keep the records required by this regulation or to produce the records in accordance with paragraph (5) is guilty of an offence.

• (7) Any person who knowingly or recklessly maintains or produces records which are false in a material particular is guilty of an offence.

Designation of auction sites

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• (1) Any person may apply to the Scottish Ministers to have a site designated as a designated auction site.

• (2) Such an application shall be made in writing, shall be made in such form and manner and shall contain such information and undertakings and shall be delivered to such address as the Scottish Ministers may specify in a notice or from time to time require.

• (3) The Scottish Ministers, having considered the relevant application and any information provided may–

• (a) designate a site as a designated auction site;

• (b) determine conditions to which the designation of the site shall be subject; and

• (c) require the applicant to provide such undertakings as the Scottish Ministers consider appropriate to the application.

• (4) The Scottish Ministers shall in writing–

• (a) notify applicants of the results of their applications; and

• (b) notify applicants whose applications for designation of sites have been approved of any conditions they have determined or undertakings required under paragraph (3).

• (5) The Scottish Ministers shall publish the fact that a site has been designated as a designated auction site in such manner as they see fit.

• (6) Where there is a failure to comply with any–

• (a) condition to which the designation of a particular site is subject; or

• (b) undertaking provided,

the person who applied to have the site designated as a designated auction site is guilty of an offence.

• (7) Any person who knowingly or recklessly makes a statement which is false in a material particular in an application under this regulation is guilty of an offence.

Registration of fish buyers

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• (1) For the purposes of Article 22(2)(b) of the CFP Regulation, a registered fish buyer shall be regarded as registered with the authorities.

• (2) Any person may apply to the Scottish Ministers to be registered as a fish buyer.

• (3) Such an application shall be made in writing, shall be made in such form and manner, shall include such information and undertakings and shall be delivered to such address as the Scottish Ministers may specify in a notice or may from time to time require.

• (4) On receipt of such an application the Scottish Ministers may–

• (a) register the applicant;

• (b) determine conditions to which the registration shall be subject; and

• (c) require the applicant to provide such undertakings as the Scottish Ministers consider appropriate to the application.

• (5) The Scottish Ministers shall in writing–

• (a) notify applicants of the results of their applications;

• (b) notify applicants whose applications for registration have been approved of any conditions which they have determined or undertakings required under paragraph (4); and

• (c) notify applicants whose applications for registration have been approved of the registration number allocated to them for the purposes of these Regulations.

• (6) The Scottish Ministers shall publish the fact that a person is a registered fish buyer in such manner as they see fit.

• (7) Any registered fish buyer who fails to comply with any–

• (a) condition to which the registration of that buyer is subject; or

• (b) undertaking provided,

is guilty of an offence.

• (8) Any person who knowingly or recklessly makes a statement which that person knows to be false in a material particular in an application under this regulation is guilty of an offence.

Purchase of fish by an unregistered buyer

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• (1) Any person who buys first sale fish in contravention of Article 22(2)(b) of the CFP Regulation, as read with the final sub-paragraph of Article 22(2), is guilty of an offence.

• (2) Any person who–

• (a) but for the final sub-paragraph of Article 22(2) would be guilty of an offence under paragraph (1); and

• (b) on the day in question, bought more than 50 kilogrammes of fish,

is guilty of an offence.

Maintenance of records by registered buyer

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• (1) Subject to paragraph (2), a registered fish buyer shall maintain records of every purchase of first sale fish made by that buyer at the place in the United Kingdom notified to the Scottish Ministers for that purpose in the registered fish buyer’s application for registration.

• (2) Where a registered fish buyer does not operate that buyer’s business from the United Kingdom or where a registered fish buyer is not established in the United Kingdom a registered fish buyer shall–

• (a) send records of every purchase of first sale fish made by the buyer to the Scottish Ministers by 31st December in each year; and

• (b) produce those records to the Scottish Ministers within 28 days of a request from a British sea fishery officer under paragraph (5) to produce those records.

• (3) The records referred to in this regulation shall include all of the following information in relation to each individual purchase–

• (a) date and location of the purchase;

• (b) quantity of each species purchased;

• (c) price paid for each species purchased;

• (d) name and PLN number of the vessel which landed the fish;

• (e) name, address and registration number of the seller; and

• (f) reference number of the invoice or contract of sale.

• (4) A registered fish buyer shall keep the records of each purchase as required by this regulation until the end of the second calendar year following that purchase.

• (5) Subject to paragraph (2)(b), a registered fish buyer shall, upon the request of a British sea fishery officer, produce the records referred to in this regulation.

• (6) A registered fish buyer who fails to keep the records required by this regulation or to produce the records in accordance with paragraph (5) is guilty of an offence.

• (7) Any person who knowingly or recklessly maintains or produces records which are false in a material particular is guilty of an offence.

Sale of fish landed from a licensed fishing vessel

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Any person who markets first sale fish which was landed by a fishing vessel in the United Kingdom other than by a licensed fishing vessel is guilty of an offence.

Prohibition on purchase of fish not landed by a licensed fishing vessel

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• (1) No person shall buy first sale fish from a fishing vessel unless that fish has been landed by a licensed fishing vessel.

• (2) In any proceedings for an offence under paragraph (1), it shall be a defence for a person to show that–

• (a) that person did not know; and

• (b) it was reasonable for that person not to suspect,

that the fish had not been landed by a licensed fishing vessel.

Penalties

12

• (1) A person convicted of an offence under these Regulations shall be liable–

• (a) on summary conviction to a fine not exceeding the statutory maximum; or

• (b) on conviction on indictment to a fine.

• (2) In addition to the penalties in paragraph (1), a court may also–

• (a) in the case of an offence under regulation 3(7) or (8), 4(1) or (2), or 5(6) or (7), order that the registration of the person convicted is revoked and that person be disqualified from applying for registration under regulation 3 or be disqualified from applying for registration under regulation 3 for a specified period;

• (b) in the case of an offence under regulation 6(6) or (7), order that the designation of the site be revoked and order that the person convicted be disqualified from applying to have a site designated under regulation 6 or be disqualified from applying to have a site designated under regulation 6 for a specified period;

• (c) in the case of an offence under regulation 7(7) or (8), 9(6) or (7), or 11(1), order that the registration of the person convicted is revoked and that person be disqualified from applying for registration under regulation 7 or be disqualified from applying for registration under regulation 7 for a specified period.

Powers of British sea-fishery officers in relation to fishing boats

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• (1) For the purpose of enforcing these Regulations or any equivalent provision, any British sea-fishery officer may exercise the powers conferred by this regulation in relation to–

• (a) any Scottish fishing boat wherever it may be; or

• (b) any other fishing boat which is within the Scottish zone.

• (2) The officer may go on board the boat, with or without persons assigned to assist the officer in the duties of that officer, and for that purpose may require the boat to stop and do anything else which will facilitate either the boarding of, or the disembarkation from, the boat.

• (3) The officer may require the attendance of the master and other persons on board the boat and may make any examination and inquiry which appears to the officer to be necessary for the purpose mentioned in paragraph (1) of this regulation and, in particular–

• (a) may search for fish or fishing gear on the boat and may examine any fish on the boat and the equipment of the boat, including the fishing gear, and require persons on board the boat to do anything which appears to the officer to be necessary for facilitating the examination;

• (b) may require any person on board the boat to produce any document relating to the boat, to any fishing operations or other operations ancillary thereto or to the persons on board which is in the custody or possession of that person;

• (c) for the purpose of ascertaining whether an offence under these Regulations or any equivalent provision has been committed, may search the boat for any such document and may require any person on board the boat to do anything which appears to the officer to be necessary for facilitating the search;

• (d) may inspect and take copies of any such document produced to the officer or found on board;