The Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures and Restriction on Days at Sea) (Scotland) Order 2009

Type Scottish-Statutory-Instrument
Publication 2009-09-17
State In force
Jurisdiction Scotland
Department King's Printer for Scotland
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Made: 17th September 2009

Laid before the Scottish Parliament: 18th September 2009

Coming into force: 10th October 2009

The Scottish Ministers make the following Order in exercise of the powers conferred by section30(2) of the Fisheries Act 1981[^f00001] and all other powers enabling them to do so.

PART I — GENERAL

Citation, commencement and extent

1

Interpretation

2

PART II — ENFORCEMENT OF COMMUNITY QUOTA AND THIRD COUNTRY FISHING MEASURES

Landing of unsorted catches

3

By catch quota– skates and rays

4

A person in charge of a relevant fishing boat is guilty of an offence if––

By catch quota– sharks and redfish

5

A person in charge of a relevant fishing boat is guilty of an offence if—

Maximum landing size – spurdog/dogfish and porbeagle

6

A person in charge of a relevant fishing boat is guilty of an offence if the following maximum landing sizes are not adhered to in contravention of AnnexIA:—

Offences

7

a contravention of, or failure to comply with, any Community quota measure, the person in charge of the fishing boat is guilty of an offence.

PART III — RESTRICTION ON DAYS AT SEA

Absence from port

8

is guilty of an offence.

Use of regulated gear

9

PART IV — LOGBOOKS AND DESIGNATED PORTS

Maintenance of logbook

10

and the requirements of the Regulations specified in paragraph(1) for handing over and dispatch of logbook entries, as modified by article11, apply to the entries required by this article as they apply to other entries.

Submission of logbook at designated port

11

by the person in charge of a relevant fishing boat prior to any landing in a designated port.

PART V — ENFORCEMENT

Penalties

12

Recovery of fines

13

whichever first occurs; or

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

14

the powers conferred by paragraphs(5), (6) and(7).

but nothing in sub-paragraph(f) permits any document required by law to be carried on board the boat to be seized and detained except while the boat is detained in a port.

and where such an officer detains or requires the detention of a boat the officer must serve notice in writing on the master stating that the boat will be or is required to be detained until the notice is withdrawn by the service on the master of a further notice in writing signed by a British sea‑fishery officer.

Powers of British sea-fishery officers on land

15

the sheriff may by signed warrant, valid for a period of no more than 1month, authorise a British sea‑fishery officer to enter the premises, if need be by using reasonable force, accompanied by such persons as appear to the officer to be necessary.

Powers of British sea-fishery officers to seize fish and fishing gear

16

any fishery product (including any receptacle which contains such product) and any net or other fishing gear to which this article applies.

Protection of officers

17

A British sea‑fishery officer, or a person assisting such an officer by virtue of article14(5) or 15(l)(b) or(3), is not liable in any civil or criminal proceedings for anything done in the purported exercise of the powers conferred by article14, 15 or 16 if the court is satisfied that—

Obstruction of officers

18

is guilty of an offence.

Offences by bodies corporate

19

that person (as well as the body corporate, Scottish partnership or, as the case may be, unincorporated association) is guilty of the offence and is liable to be proceeded against and punished accordingly.

Admissibility in evidence of logbooks and other documents

20

of Regulation 2847/93[^f00015] is, in any proceedings for a relevant offence, to be received in evidence without being produced or sworn to by any witness and is, unless the contrary is shown, conclusive evidence as to the matters stated therein.

as communicated via a satellite-based vessel monitoring system established under Article3.1 of Regulation2847/93.

Revocation

21

Articles2 to 33 of the Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures and Restriction on Days at Sea) (Scotland) Order 2008[^f00017] are revoked.

SCHEDULE 1 — COMMUNITY QUOTA MEASURES (MAXIMUM FINES ON SUMMARY CONVICTION)

Column 1 Provision of the Council Regulation Column 1 Provision of the Council Regulation Column 2 Subject matter Column 3 Maximum fine on summary conviction
1.Article6 1.Article6 Prohibition on fishing for, retaining on board, transhipping or landing basking shark (Cetorhinus maximus) and white shark (Carcharodon carcharias). £50,000
2.Article9.1 2.Article9.1 Restriction on retaining on board or landing catches from stocks for which total allowable catches or quotas are established and have been exhausted. £50,000
3.Article9.2 3.Article9.2 Circumstances required for fish to be retained on board and landed where a Member State has no quota or quota is exhausted. The statutory maximum
4.Article10.2 4.Article10.2 Prohibition on landing catches which are unsorted and contain herring when catch limitations of a Member State are exhausted in ICES zonesIIIa, IV and VIId and EC waters of ICES zone IIa. £50,000
5.Article11 5.Article11 Prohibition on fishing by Community vessels in certain Norwegian waters. £50,000
6.Articles13 and19 as read with— 6.Articles13 and19 as read with—
(a) paragraph1 of AnnexIII Prohibition on the landing or retention on board of herring caught in EC waters of ICES zoneIIa in the periods of 1stJanuary to 28thFebruary and 16thMay to 31stNovember. The statutory maximum
(b) paragraph2 of AnnexIII and Appendix1 to that Annex Requirements as to mesh sizes, target species and catch percentages in the Skagerrak and Kattegat. The statutory maximum
(c) paragraph4 of AnnexIII Prohibition on landing or retaining on board sandeels caught in certain waters within ICES zoneIV. £50,000
(d) paragraph5 of AnnexIII Prohibition on fishing (except with longlines) in the Rockall Haddock Box in ICES zoneVI. £50,000
(e) paragraph6.1 of AnnexIII, as read with paragraphs6.3 and6.4 of that Annex Prohibition on fishing activity in certain waters off the West of Scotland within ICES zoneVIa until 31stDecember 2009. £50,000
(f) paragraph9.3 of AnnexIII as read with paragraph9.4 of that Annex Prohibition on the use of gillnets, entangling nets and trammel nets in certain waters where the charted depth is greater than 200metres. £50,000
(g) paragraph 9.5 of AnnexIII Requirement that only onetype of gear described in paragraph 9.4(a) and (b) of Annex III are carried aboard a vessel at any one time. £50,000
(h) paragraph 9.6 of AnnexIII Requirement to hold a special fixed net fishing permit when deploying gillnets or entangling nets in certain waters where charted depth is greater than 200 metres. £50,000
(i) paragraph 9.7 and 9.9 of AnnexIII Requirements to record information in a logbook if fixed net permit is held. £50,000
(j) paragraph15 of AnnexIII Prohibition on bottom trawling and fishing with static gear in certain waters and conditions on pelagic vessels fishing in certain waters. £50,000
(k) paragraph16 of AnnexIII Required minimum size for short‑necked clam (Ruditapes philippinarum). £50,000
(l) paragraph20 of AnnexIII Prohibitions relating to octopus (Octopus vulgaris) weighing under 450grammes (gutted) caught in certain waters. The statutory maximum

SCHEDULE 2 — COMMUNITY THIRD COUNTRY FISHING MEASURES (MAXIMUM FINES ON SUMMARY CONVICTION)

Column 1 Provision of the Council Regulation Column 2 Subject matter Column 3 Maximum fine on summary conviction
1.Article15 Prohibition on fishing for, retaining on board, transhipping or landing basking shark (Cetorhinus maximus) and white shark (Carcharodon carcharias). £50,000
2.Article16 Requirement in relation to vessels flying the flag of Norway or registered in the Faroe Islands to fish within the geographical zone set out in Article16(1). £50,000
3.Article 17 Requirements regarding stowing of nets when transiting through Community waters. £50,000
4.Article18 Requirement to fish within the quota limits contained in AnnexI. £50,000
5.Article22.2 as read with Article 22.1 and Article 18 of Regulation 1006/2008 Requirement on vessels (other than vessels registered in the Faroe Islands or Norway) to keep on board the fishing authorisation which is required by fishing vessels other than vessels of less than 200GT flying the flag of Norway. £50,000
6.Article26.1 Requirement to keep a logbook in compliance with Part I of AnnexV. £50,000
7.Article26.2, as read with Article26.3 and Article23 of Regulation 1006/2008 Requirement (except for vessels flying the flag of Norway fishing in ICES DivisionIIIa) to transmit information in compliance with AnnexVI. The statutory maximum
8.Paragraph 7(a) of AnnexVI Requirement as regards vessels with catch on board to obtain authorisation before commencing fishing for blue whiting. £50,000
9.Paragraph 7(c) of AnnexVI Requirements as regards vessels fishing for blue whiting leaving Community waters. £50,000

SCHEDULE 3 — DESIGNATED PORTS

Port Location within port (where applicable)
ENGLAND AND WALES ENGLAND AND WALES
North Shields
Whitby Fish quay
Scarborough West Pier
Humberside (Hull and Grimsby) Hull– North side of Albert Dock & William Wright Dock Grimsby– Fish Dock, Market Quay
Lowestoft Waveney Dock
Shoreham Within the confines of the harbour
Plymouth Sutton Harbour, New Fish Market
Brixham
Newlyn
Milford Haven
Holyhead Fish Dock
Whitehaven North Harbour on the Old North Wall Quay next to the Ice Plant and on the North Wall Quay next to the Fish Handling Facility building
Fleetwood Wyre Fish Dock
SCOTLAND SCOTLAND
Eyemouth
Pittenweem
Aberdeen Palmerston Quay & Commercial Quay
Peterhead Peterhead Harbour excluding Peterhead Bay Harbour
Fraserburgh
Buckie
Lerwick All piers, quays and docks within harbour limits excluding those in Dales Voe
Scalloway
Kirkwall
Scrabster
Kinlochbervie All quays lying to the North of the ice factory quay
Lochinver
Ullapool
Stornoway
Portree
Mallaig
Oban
Campbeltown
Troon
Cullivoe
NORTHERN IRELAND NORTHERN IRELAND
Ardglass
Portavogie
Kilkeel
Bangor

Signed

RICHARD LOCHHEAD — A member of the Scottish Executive — 17th September 2009

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order, which forms part of the law of Scotland only, makes provision for the enforcement of Council Regulation (EC) No.43/2009 (“the Council Regulation”).

PartI makes provision for interpretation of the Order.

PartII makes provision for the enforcement of certain enforceable Community restrictions and other obligations relating to sea fishing by Community vessels and third country vessels set out in the Council Regulation. The Council Regulation fixes total allowable catches and the quotas of Member States for 2009 in respect of certain fish stocks and lays down certain conditions under which they may be fished. It also authorises fishing by third country vessels of Norway and the Faroe Islands for specified fish stocks in Community waters in 2009, subject to requirements regarding fishing quotas and authorised zones, methods of fishing, fishing authorisations and associated conditions, the keeping of logbooks, the transmission of information and similar matters.

PartII of the Order—

PartIII of the Order provides for the enforcement in Scotland of the provisions of AnnexIIa to the Council Regulation. It creates offences associated with the number of days that certain fishing boats can spend and the use of gear permitted within, the cod recovery zone in accordance with AnnexIIa of the Council Regulation (articles 8 and 9).

Part IV of the Order provides for the maintenance and submission of logbooks at ports designated in the Order (articles 10 and 11 and Schedule 3).

Part V of the Order provides for penalties (article 12) and for the recovery of fines imposed in respect of an offence under the Order (article 13).

For the purposes of enforcing the provisions of the Order or any equivalent provision (as defined in the Order) Part IV of the Order confers on British sea-fishery officers the powers to enter premises, to go on board fishing boats, to stop and search vehicles transporting fish, to examine fish, to require the production of documents, to search for and seize documents, to take a boat to the nearest convenient port and to seize fish and fishing gear (articles 14 to 16).

Provision is made for the protection of British sea-fishery officers in the exercise of their powers under the Order (article 17) and for an offence of obstructing such officers (article 18).

Provision is made in relation to offences committed by a body corporate, a partnership or an unincorporated association (article19) and in relation to the admissibility in evidence of logbooks and other documents (article 20).

The Order revokes articles2 to 33 of the Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures and Restriction on Days at Sea) (Scotland) Order 2008 (article21).

A Regulatory Impact Assessment in the relation to this Order has been prepared and placed in SPICE. Copies can be obtained from Marine Scotland, Robb’s Loan, Edinburgh, EH14 1TY.

Footnotes

[^f00001]: 1981 c.29 (“the1981 Act”); relevant modifications are contained in the Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 1999 (S.I.1999/1748), article5 and the Scotland Act 1998 (Modification of Functions) Order 1999 (S.I.1999/1756), articles3, 5 and6. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section53 of the Scotland Act 1998 (c.46). See section30(3) of the 1981 Act for definitions of “enforceable Community restriction”, “enforceable Community obligation” and “the Ministers”. Section30 of the 1981 Act has effect in relation to Scotland as modified by section30(5) of that Act, inserted by the Scotland Act 1998 (Consequential Modifications) (No.2) Order 1999 (S.I.1999/1820), Schedule2, paragraph68(5)(b).

[^f00002]: Section30(2A) was inserted by the Scotland Act 1998 (Consequential Modifications) (No.2) Order 1999 (S.I.1999/1820), Schedule2, paragraph68(5)(a).

[^f00003]: 1995 c.21.

[^f00005]: 1967 c.84 (“the 1967 Act”); section4 was substituted by the Fishery Limits Act 1976 (c.86), section3 and amended by the Fisheries Act 1981 (c.29), section20 and the Sea Fish (Conservation) Act 1992 (c.60), section1. It has effect in relation to Scotland as modified by section22A of the 1967 Act, as inserted by the Scotland Act 1998 (Consequential Modifications) (No.2) Order 1999 (S.I.1999/1820), Schedule2, paragraph43(13).

[^f00006]: O.J. No. L276, 10.10.83, p.1 as corrected by a Corrigendum published in O.J.No.L353, 15.12.83, p.21 and as amended by Act of Accession of Spain and Portugal, O.J.No.L302, 15.11.85, p.23; Commission Regulation (EEC) No.473/89, O.J.No. L53, 25.2.89, p.34; Act of Accession of Austria, Sweden and Finland, O.J.No.C241, 29.8.94, p.21 (adapted by Council Decision 95/1/EC, Euratom, ECSC, O.J.No.L1, 1.1.95, p.1); Commission Regulation (EEC) No. 2945/95, O.J.No. L308, 21.12.95, p.18; Commission Regulation (EC) No.395/98, O.J. No. L50, 20.2.98, p.17; Commission Regulation (EC) No.1488/98, O.J. No. L196, 14.7.98, p.3; Commission Regulation (EC) No.2737/1999, O.J. No. L328, 22.12.99, p.54 (corrected by two Corrigenda, published in O.J.No.L12, 18.1.00, p.36 and O.J.No.L29, 4.2.00, p.38); Commission Regulation (EC) No.1965/2001, O.J. No. L268, 9.10.01, p.23 and Commission Regulation (EC) No.1804/2005, O.J. No. L290, 4.11.05, p.10.

[^f00007]: O.J. No. L261, 20.10.93, p.1 as amended by Council Regulation (EC) No.2870/95, O.J. No. L301, 14.12.95, p.1; Council Decision 95/528/EC, O.J. No. L301, 14.12.95, p.35 (corrected by a Corrigendum published in O.J.No.L302, 15.12.95, p.45); Council Regulation (EC) No.2489/96, O.J. No. L338, 28.12.96, p.12; Council Regulation (EC) No.686/97, O.J.No.L102, 19.4.97, p.1; Council Regulation (EC) No.2205/97, O.J. No. L304, 7.11.97, p.1; Council Regulation (EC) No.2635/97, O.J. No. L356, 31.12.97, p.14; Council Regulation (EC) No.2846/98, O.J. No. L358, 31.12.98, p.5 (corrected by a Corrigendum published in O.J.No.L105, 22.4.99, p.32); Council Regulation (EC) No.806/2003, O.J.No.L122, 16.5.03, p.1; Council Regulation (EC) No.1954/2003, O.J. No. L289, 7.11.03, p.1; Council Regulation (EC) No.768/2005, O.J. No. L128, 21.5.05, p.1; Council Regulation (EC) No.1967/2006, O.J. No.L409, 30.12.06, p.11 (corrected by a Corrigendum published in O.J.No.L36, 8.2.07, p.6); Council Regulation (EC) No.1098/2007, O.J.No.L248, 22.9.07, p.1; Council Regulation (EC) No.1006/2008, O.J.No.L286, 29.10.08, p.33 and as read with Article20 of, and modified by Articles28 and 29 of, Council Regulation (EC) No.1342/2008, O.J. No.L348, 24.12.08, p.20.

[^f00008]: O.J. No. L286, 29.10.08, p.33.

[^f00009]: O.J. No.L348, 24.12.08, p.20.

[^f00010]: 1998 c.46. The sea within British fishery limits (that is, the limits set by or under section1 of the Fishery Limits Act 1976 (c.86)) which is adjacent to Scotland is determined by the Scottish Adjacent Waters Boundaries Order 1999 (S.I.1999/1126).

[^f00011]: O.J. No. L22, 26.1.09, p.1 as amended by Council Regulation (EC) No.302/2009, O.J. No.L96, 15.4.09, p.1; Commission Regulation (EC) No.517/2009, O.J. No.L155, 18.6.09, p.9 and Commission Regulation (EC) No.593/2009, O.J.No.L178, 9.7.09, p.12.

[^f00012]: 1995 c.46.

[^f00013]: 1980 c.43.

[^f00015]: O.J. No. L261, 20.10.93, p.1.

[^f00016]: 1981 c.29; section30(2A) was inserted by S.I.1999/1820.

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