The Sea Fishing (Illegal, Unreported and Unregulated Fishing) (Scotland) Order 2013

Made: 30th May 2013

Laid before the Scottish Parliament: 31st May 2013

Coming into force: 29th June 2013

to be construed as references to those Articles or, as the case may be, to those Annexes, as amended from time to time.

Citation, commencement, extent and application

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• (1) This Order may be cited as the Sea Fishing (Illegal, Unreported and Unregulated Fishing) (Scotland) Order 2013 and comes into force on 29th June 2013.

• (2) Subject to paragraph (2A), this Order extends to Scotland and the Scottish zone only.

• (2A) So far as this Order extends beyond Scotland and the Scottish zone, it does so only as a matter of Scots law.

• (3) Nothing in paragraph (2) is to be treated as prejudicing the effect of section 30(2A) of the Fisheries Act 1981[^f00006] in the rest of the United Kingdom in relation to, or for the purposes incidental to, any provision which creates an offence.

• (4) This Order applies—

• (a) in relation to Scottish fishing boats, wherever they are; and

• (b) to other fishing boats within the Scottish zone.

• (5) In paragraph (4)(a), a “Scottish fishing boat” means a fishing vessel 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.

Interpretation

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• (1) In this Order—

• “authorised officer” means a person authorised in writing by a local authority or the Scottish Ministers for the purposes of this Order;

• “British sea-fishery officer” has the same meaning as in section 7 of the Sea Fisheries Act 1968[^f00008];

• “Commission Regulation” means Commission Regulation (EC) No 1010/2009 laying down detailed rules for the implementation of Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing;

• “the Commissioners” means the Commissioners for Her Majesty’s Revenue and Customs;

• “controlled consignment” means a consignment prohibited from movement under article 4;

• “Council Regulation” means Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, amending Regulations (EEC) No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and (EC) No 1447/1999;

• “Council Regulation 1224/2009” means Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006;

• “equivalent provision” means any provision in any other Order extending to any part of the United Kingdom which has equivalent effect to a provision in this Order, proceedings in respect of which may be taken in Scotland by virtue of section 30(2A) of the Fisheries Act 1981;

• ...

• “fishery products” are those products described in Article 2(8) of the Council Regulation with the exception of the products listed in Annex I of that Regulation;

• “fishing logbook” has the same meaning as in Articles 14 and 15 of Council Regulation 1224/2009 and for the purposes of this Order any reference to a fishing logbook, declaration or document includes, in addition to a fishing logbook, declaration or document in writing, any related—map, plan, graph or drawing;photograph;data, however reproduced, communicated via a satellite-based vessel monitoring system established under Article 9 of Council Regulation 1224/2009;data, however reproduced, communicated to a fisheries monitoring centre established under Article 9(7) of Council Regulation 1224/2009;disk, tape, sound track or other device on which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced; andfilm (including microfilm), negative, tape, disk or other device on which one or more visual images are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced;

• “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994[^f00009];

• “Scotland” and “the Scottish zone” have the same meanings assigned to those terms by section 126(1) of the Scotland Act 1998[^f00010]; and

• “third country fishing boat” means a fishing boat which is not a United Kingdom fishing boat.

• “United Kingdom fishing boat” means a fishing vessel which is registered in the United Kingdom under Part 2 of the Merchant Shipping Act 1995;

• (2) Expressions used in this Order that appear or are referred to in the Council Regulation or the Commission Regulation, and which are not defined in this article, have the same meaning in this Order as in those Regulations.

• (3) Any reference to-

• (a) Article 8, 14, 16, 17 or 18 of, or any Annex to, the Council Regulation;

• (b) Article 3 or 20 of, or any Annex to, the Commission Regulation; or

• (c) Article 14, 15, 21, 23, 62, 63, 66, 67 or 68 of Council Regulation 1224/2009,

is a reference to that Article or, as the case may be, Annex as amended from time to time.

• (4) Any information provided to any authority for the purposes of any provision of this Order is to be treated as also provided for the purposes of any equivalent provision.

Competent authority

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• (1) The Scottish Ministers are the competent authority for the purposes of the Council Regulation and the Commission Regulation.

• (2) In the case of fishery products imported into Scotland, the local authority is also the competent authority for the purposes of the provisions referred to in paragraph (3).

• (3) The provisions are—

• (a) Article 12(2) of the Council Regulation (receipt of catch certificates);

• (b) Article 14(1) and (2) of the Council Regulation (receipt of catch certificates, documentation and statements describing consignments where fishery products have been processed in a third country or have come via a third country);

• (c) Article 16(1) and (2) of the Council Regulation (checking catch certificates and receiving information from approved economic operators);

• (d) Article 17(2) of the Council Regulation and Article 20 of the Commission Regulation (verifications); and

• (e) Article 18(1), (2) and (3) of the Council Regulation (refusal of importation).

Control on movement

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• (1) An authorised officer may prohibit the movement of a consignment of fishery products from the place of import while a verification takes place pursuant to Article 17 of the Council Regulation or Article 20 of the Commission Regulation.

• (2) An authorised officer who has prohibited the movement of a consignment must, as soon as possible after the prohibition, give a written notice to the importer or the person who appears to the officer to be in charge of the consignment.

• (3) The notice must—

• (a) describe the consignment;

• (b) state that it may not be moved without the written consent of an authorised officer under article 5;

• (c) specify the relevant provision of the Council Regulation or Commission Regulation in respect of which the authorised officer has reason to believe that there has been a failure to comply; and

• (d) specify what steps, if any, must be taken to demonstrate compliance with that provision, and the time by which such steps must be taken.

• (4) If the person to whom the authorised officer has given a notice under this article does not appear to the officer to be the importer or an agent, contractor or employee of the importer, the authorised officer must take reasonable steps to bring the contents of the notice to the attention of such a person as soon as practicable following the giving of the notice.

• (5) Where the authorised officer is satisfied that—

• (a) a verification pursuant to Article 17 of the Council Regulation or Article 20 of the Commission Regulation has been completed;

• (b) the steps specified under paragraph (3)(d) have been fulfilled within the specified time frame; and

• (c) there has been no breach of the Council Regulation or Commission Regulation,

the officer must revoke the notice issued under this article.

• (6) A notice served under this article may be revoked under paragraph (5) by service of a further notice signed by an authorised officer.

Consent to movement

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• (1) An authorised officer may give written consent to the movement of a controlled consignment.

• (2) Before giving such consent, an authorised officer may require the importer to give a written undertaking to the effect that the consignment is to—

• (a) be moved to a place specified by an authorised officer; and

• (b) not be moved from that place without the written consent of an authorised officer.

• (3) Any consent given under this article must—

• (a) describe the controlled consignment to which it relates;

• (b) specify the place to which the controlled consignment is to be moved; and

• (c) state that the consignment continues to be controlled.

• (4) Where such consent has been given and the consignment has been moved to the place specified under paragraph (3)(b), the prohibition on movement under article 4 applies to it at such place as it applied at the place of import.

Refusal of importation

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• (1) The competent authority must refuse importation or permission to use transhipment facilities where a pre-landing or pre-transhipment declaration has not been submitted in accordance with Article 8 of the Council Regulation and Article 3 of, and Annexes IIIA and IIIB to, the Commission Regulation.

• (2) In the event that the competent authority refuses the importation of fishery products pursuant to Article 18(1) or (2) of the Council Regulation, the authorised officer may seize any fishery products, including any receptacle which contains the fishery products.

• (3) Any fishery product which is seized under paragraph (2) may be sold, disposed of or destroyed by the competent authority in any manner it thinks fit where—

• (a) it has notified the importer of its intention to sell, dispose of or destroy the fishery product; and

• (b) either no appeal is made under article 7(1) in relation to a decision to give notice under sub-paragraph (a) and the period specified in article 7(2)(b) has elapsed or such appeal having been made—

• (i) the appeal has been withdrawn; or

• (ii) the sheriff dismisses the appeal.

Right of appeal

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• (1) Where the competent authority has decided—

• (a) to refuse importation or permission to use transhipment facilities pursuant to article 6(1);

• (b) to refuse importation pursuant to Article 18(1) or (2) of the Council Regulation;

• (c) to seize any fishery product or receptacle under article 6(2); or

• (d) to give notice under article 6(3)(a),

the importer may appeal against the competent authority’s decision to the sheriff.

• (2) An appeal must be made—

• (a) by way of summary application; and

• (b) within the period of 28 days beginning with the day on which—

• (i) the relevant decision mentioned in paragraph (1)(a) or (b) was taken;

• (ii) the seizure under article 6(2) was made; or

• (iii) the notification under article 6(3)(a) was given.

• (3) On cause shown, the sheriff may allow an appeal against a decision mentioned in paragraph (1)(a), (b) or (c) to be made after the period mentioned in paragraph (2)(b) has expired.

• (4) For the purposes of an appeal, the sheriff may—

• (a) require the competent authority to give reasons for its decision;

• (b) hear evidence by or on behalf of a party to the appeal; or

• (c) consider any evidence or other information relevant to the appeal (whether or not available when the decision was taken).

• (5) The competent authority may be a party to an appeal.

• (6) In an appeal, the sheriff may—

• (a) uphold, vary or quash the decision (wholly or partly); or

• (b) remit the matter to the competent authority for reconsideration of its decision.

• (7) The sheriff may vary or quash the decision as referred to in paragraph (6)(a) only if satisfied that the competent authority, in arriving at it—

• (a) erred in law;

• (b) relied on an incorrect material fact;

• (c) acted contrary to natural justice; or

• (d) exercised its discretion in an unreasonable manner.

• (8) If remitting a case under paragraph (6)(b) above, the sheriff may—

• (a) specify a date by which the competent authority is to reconsider its decision;

• (b) modify any procedural steps in relation to the matter that the competent authority would otherwise require to take by virtue of an enactment (including this Order and anything comprised in, or an instrument made under, an Act of the Scottish Parliament).

• (9) In disposing of the appeal, the sheriff may make such order as to the expenses of the appeal as the sheriff thinks proper.

• (10) The decision of the sheriff is final.

• (11) Pending the determination of an appeal under this article any fishery product which is seized under article 6(2) must be kept in storage under the control of the competent authority and the cost of the storage must be borne by the importer.

Fees relating to third country imports

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The local authority may charge an importer a consignment fee to recover any expenses reasonably incurred by it in carrying out its functions under article 3(2) or 4 in respect of any consignment.

Offences

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• (1) It is an offence for the person in charge of a third country fishing boat to enter port without authorisation under Article 7 of the Council Regulation.

• (2) It is an offence for the person in charge of a fishing boat to conduct a transhipment with a third country fishing boat contrary to Article 4(3) of the Council Regulation.

• (3) It is an offence for a person to import fishery products without a validated catch certificate in accordance with Article 12 of the Council Regulation.

• (4) It is an offence for a person to import fishery products obtained from IUU fishing.

• (4A) It is an offence for a person to import fishery products caught by a third country fishing boat flying the flag of a non-cooperating third country unless the products are from stock or species to which the listing by the Secretary of State under Article 33 of the Council Regulation of the country as a non-cooperating third country does not apply.

• (5) It is an offence for a person in charge of a fishing boat to engage in directed fishing for a stock which is subject to a moratorium or for which fishing is prohibited under Article 3(1)(d), as read with Article 42(1), of the Council Regulation.

• (6) It is an offence for a person in charge of a fishing boat to tranship fishery products to or from, participate in joint fishing operations with, support or re-supply, a boat that—

• (a) has engaged in IUU fishing;

• (b) is on the United Kingdom IUU vessel list; or

• (c) is on an IUU vessel list of a regional fisheries management organisation ....

• (7) It is an offence for a person in charge of a United Kingdom fishing boat to engage in fish processing operations with a boat that is on the United Kingdom IUU vessel list.

• (8) In relation to a fishing boat on the United Kingdom IUU vessel list, it is an offence for a person—