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The Scottish Ministers, in exercise of the powers conferred by section 30(2) of the Fisheries Act 1981[1] and of all other powers enabling them in that behalf, hereby make the following Order: Citation, commencement and extent 1. - (1) This Order may be cited as the Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2003 and shall come into force on 1st February 2003. (2) Subject to paragraph (3), this Order shall extend to Scotland and the Scottish Zone, and insofar as it extends beyond Scotland and the Scottish Zone, it does so only as a matter of Scots law. (3) Nothing in paragraph (2) shall be treated as prejudicing the effect of section 30(2A) of the Fisheries Act 1981 in the rest of the United Kingdom in relation to, or for purposes incidental to, any provision which creates an offence. Interpretation 2. - (1) In this Order-
(b) in relation to article 6-
(ii) an English, Welsh or Northern Ireland fishing boat where a Scottish fishing boat is the donor and it is the recipient or it is the donor and a Scottish fishing boat is the recipient,
licensed under section 4 of the Sea Fish (Conservation) Act 1967[4], but does not include a British fishing boat which has an overall length of less than 10 metres;
(2) In this Order, "logbook" has the same meaning as in paragraph 18 of Annex XVII but, for the purposes of any provision of this Order, other than article 6 and 11, any reference to a document, logbook or declaration includes, in addition to a document, logbook or declaration in writing-
(b) any photograph; (c) any data, howsoever reproduced, communicated via a satellite-based vessel monitoring system established under Article 3.1 of Council Regulation 2847/93 establishing a control system applicable to the Common Fisheries Policy[6], as last amended by Council Regulation (EC) No. 2846/98 of 17th December 1998[7]; (d) any disk, tape, sound track or other device in 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 therefrom; and (e) any film (including microfilm), negative, tape, disk or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom.
(3) Any information provided to any authority for the purposes of any provision of this Order shall be treated as also provided for the purposes of any equivalent provision.
(b) is absent from port in excess of the number of days permitted to it by the following provisions of this article,
is guilty of an offence.
(b) in application of paragraph 11(a) (aggregation of periods) of Annex XVII, for each successive period of two calendar months the first of which starts on 1st February 2003 and the last of which ends on 30th November 2003,
subject to paragraph (8), double the number ascertained in accordance with paragraph 6 as read with paragraph 9 of Annex XVII and applicable to the vessel in accordance with any fishing gear it carries,
(3) In relation to any relevant British fishing boat and in respect of the type of fishing gear it may carry, for each calendar month there is added to the basic number, such number of days (if any) as may be allocated to the United Kingdom under paragraph 6(b) and (c) of Annex XVII for the purpose of being such an addition.
(b) added to the basic number for the next period.
(5) Where a number of days is transferred in the same period from a donor to a recipient in accordance with article 6, that number is-
(b) added to the basic number for the recipient for that period.
(6) Where during any period fishing gear is affixed to two or more fishing boats there shall be deducted from the basic number for each such boat that is a relevant British fishing boat in relation to that gear and that period a number of days equal to the number when it was absent from port but the gear was being carried by any other such boat.
(b) purported to transfer days in accordance with article 6 in excess of the number that pursuant to article 6(4)(b) it was entitled to transfer,
the Scottish Ministers may deduct from its basic number for the next period a number equal to the number of days in that excess.
(b) for the purposes of paragraph (3)(2)(b), a successive period of two calendar months referred to in paragraph (3)(2)(b).
(10) In any proceedings for an offence under paragraph 3(1)(b) of this article, it shall be a defence for a person to show that the number of days of absence from port carrying any type of fishing gear comprising the offence was no greater than the number of days of absence carrying that gear purportedly but not validly transferred to that person under article 6 and that person did not know and had no reasonable cause to suspect that the donor was not entitled to transfer the days.
(b) the boat has not been the subject of any adjustment in respect of the period under articles 3(4) and (5); and (c) the activity would not have comprised an offence if, instead of paragraph 11(a) of the Annex being applied to the period-
(ii) the number applied to December 2003 by virtue of article 3(2)(a) had applied to each such period.
Transfer of days from one period to another
(b) contain all the particulars required by that form; and (c) be sent to the Scottish Ministers before the end of the period in question.
(3) A transfer is not permitted, except on cause shown to the satisfaction of the Scottish Ministers, if-
(b) the donor has been decommissioned within the meaning of article 7 of Council Regulation 2792/1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector[8] as last amended by Council Regulation (EC) No 2369/2002 of 20th December 2002[9]; or (c) it relates to the gear defined in paragraph 4(a) of Annex XVII and the donor has not, within the same period, fished with that gear in any of the areas defined in paragraph 2 of Annex XVII.
(4) If, before 1st February 2003, a logbook has not been submitted in respect of the donor containing an entry showing that it was fishing in any of the areas specified in paragraph 2 of Annex XVII with a type of fishing gear specified in paragraph 4 of Annex XVII at any time during the years 2001 or 2002, then a transfer is not permitted.
(b) the maximum number of unused days which may be permitted to be so transferred under paragraph 10(b) of Annex XVII as read with this Order.
(6) A person who makes a false statement in a notification under paragraph (2) of this article is guilty of an offence.
(b) in the Schedule, in column 3 of each entry opposite items 2(l), (m), (n) and (o), after the words "15 metres" wherever they appear there is inserted "(or to the extent applicable in consequence of paragraph 12 of Annex XVII, equal to or greater than 10 metres)".
Landing of Cod
(b) in any of the areas specified in paragraph 2 of Annex XVII,
in respect of every such absence.
(b) at the time of arrival in port; and (c) at the time of any inspection at sea.
(3) Where there is, in respect of a relevant British fishing boat, a failure to make an entry required by this article the person in charge of that fishing boat is guilty of an offence.
(b) on conviction on indictment to a fine.
(2) The court by or before which a person is convicted of an offence under articles 8 or 9 may order the forfeiture of-
(b) in respect of an offence under article 3(1), 8, or 9 any net or other fishing gear used in committing the offence.
(3) Any person found guilty of an offence under article 3(1), 8 or 9 or under any equivalent provision shall, subject to the following provisions of this article, be liable on summary conviction to a fine not exceeding the value of the fish in respect of which the offence was committed.
(ii) the order is renewed for a further period (not exceeding three months); or (iii) on which a warrant is issued under sub paragraph (b),
whichever first occurs; or
(2) The court shall not issue a warrant under paragraph (1)(b) without first affording the owner of the boat, gear or catch liable to be included in the warrant an opportunity to be heard on the issue of such warrant.
(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 may require the boat to stop and do anything else which will facilitate either the boarding of, or the disembarkation from, the boat.
(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 custody or possession of that person; (c) for the purpose of ascertaining whether a relevant offence 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 that officer to be necessary for facilitating the search; (d) may inspect and take copies of any such document produced to that officer or found on board; (e) without prejudice to sub-paragraphs (c) and (d), may require the master and any person for the time being in charge of the boat to render all such documents on a computer system into a visible and legible form, including requiring any such document to be produced in a form in which it may be taken away; and (f) where the boat is one in relation to which the officer has reason to suspect that a relevant offence has been committed, may seize and detain any such document produced to the officer or found on board for the purpose of enabling the document to be used as evidence in proceedings for the offence,
but nothing in sub-paragraph (f) shall permit 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.
(b) may detain or require the master to detain the boat in the port,
and where such an officer detains or requires the detention of a boat that officer shall serve on the master a notice in writing 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.
(b) take with that officer such other persons as appear to that officer to be necessary and any equipment or materials; (c) examine any fishery product on the premises and require persons on the premises to do anything which appears to that officer to be necessary for facilitating the examination; (d) carry out at such premises such other inspections or tests as may reasonably be necessary; (e) require any person not to remove or cause to be removed any fishery product from such premises for such a period as may be reasonably necessary for the purposes of establishing whether a relevant offence has at any time been committed; (f) require any person on the premises to produce any documents which are in the custody or possession of that person relating to the catching, landing, transportation, trans shipment, sale or disposal of any fish or to the entry to, or exit from, any port or harbour by any fishing vessel; (g) for the purpose of ascertaining whether any person on the premises has committed a relevant offence, search the premises for any such document and may require any person on the premises to do anything which appears to that officer to be necessary for facilitating the search; (h) inspect and take copies of any such document produced to officer or found on the premises; (i) require any appropriate or responsible person to render any such document on a computer system into a visible and legible form, including requiring it to be produced in a form in which it may be taken away; and (j) if that officer has reason to suspect that a relevant offence has been committed, seize and detain any such document produced or found on the premises for the purpose of enabling the document to be used as evidence in proceedings for the offence.
(2) The provisions of paragraph (1) shall also apply in relation to any land used in connection with any of the activities described in paragraph (1), or in respect of any vehicle which a British sea-fishery officer has reasonable cause to believe is being used to transport fishery products, as they apply in relation to premises and, in the case of a vehicle, shall include power to require the vehicle to stop at any time and, if necessary, direct the vehicle to some other place to facilitate the inspection.
(b) either-
(ii) that an application for admission or the giving of such notice would defeat the object of the entry; or (iii) that the premises are unoccupied, or the occupier is temporarily absent and it might defeat the object of the entry to await the return of the occupier,
the sheriff may by signed warrant, valid for a period of no more than one month, authorise a British sea-fishery officer to enter the premises, if need be by 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
(b) on a Scottish fishing boat wherever it may be,
any fishery product (including any receptacle which contains such product) and any net or other fishing gear to which this article applies.
(b) any net or other fishing gear which the officer has reasonable grounds to suspect has been used in the course of the commission of such an offence.
Protection of officers
(b) that there were reasonable grounds for doing it; and (c) that it was done with reasonable skill and care.
Obstruction of officers
(b) without reasonable excuse prevents, or attempts to prevent, any other person from complying with any such requirement; or (c) intentionally obstructs any such officer in the exercise of any of those powers,
is guilty of an offence.
(b) on conviction on indictment to a fine.
Provisions as to offences
(b) declaration submitted under Articles 8.1, 11, 12, 17.2 or 28f; (c) effort report completed under Articles 19b and 19c; (d) document drawn up under Articles 9 or 13; (e) document containing required information received by a fisheries monitoring centre established under Article 3.7,
of Council Regulation (EC) No. 2847/93 of 12th October 1993 (establishing a control system applicable to the Common Fisheries Policy, as last amended by Council Regulation (EC) No. 2846/98 of 17th December 1998) shall, in any proceedings in Scotland for an offence under this Order or any equivalent provision, be received in evidence without being produced or sworn to by any witness and shall, unless the contrary is shown, be conclusive evidence as the matters stated therein.
(b) the most recent geographical position of the fishing boat expressed in degrees and minutes of longitude and latitude; and (c) the date and time of the fixing of that position,
as communicated via a satellite-based vessel monitoring system established under Article 3(1) of Council Regulation (EC) No. 2847/93. ENGLAND AND WALES
SCOTLAND
NORTHERN IRELAND
(This note is not part of the Order) This Order provides for the enforcement in Scotland of the provisions of Annex XVII ("the Annex") to Council Regulation 2341/2002 (O.J. No. L 356, 31.12.02, p.12) ("the Council Regulation") fixing for certain fish stocks and groups of fish stocks the fishing opportunities in Community waters for 2003. The Order contains provisions relating to the calculation of the number of days on which a vessel may be absent from port for the purposes of the Annex (article 3(2) to (7)) and makes clear, in particular in relation to the types of gear at paragraph 4(a) of the Annex, that the number of fishing days available cannot exceed the total calculated under paragraph 6 of the Annex (article 3(8)). It also contains provisions relating to absence from port in specified circumstances (article 4) and the transfer of days from one period to another (article 5) and from one vessel to another (article 6). By virtue of article 8(2), the ports named in the Schedule are designated, for the purposes of paragraph 14 of the Annex. The Order creates offences in respect of contraventions, by a person in charge of a relevant British fishing boat (as defined in the Order), of the provisions of paragraphs 6 (absence from port in excess of number of permitted days), 7 (single type of gear), 8 (use of gear in different areas) and 9 (use of gears in different periods) of the Annex (article 3(1)). The Order also creates offences in respect of contraventions by certain persons of other provisions of the Annex (articles 8, 9, 10 and 11) and in respect of the making of a false statement by any person in a notification under article 6(2) (article 6(6)) and extends the application of the Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000 (S.S.I. 2000/7) in pursuance of the Annex (article 7). The Order provides for the recovery of fines imposed in respect of a relevant offence as defined in the Order (article 13). For the purposes of enforcing provisions of the Annex 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 17). A Regulatory Impact Assessment in the relation to the Annex has been prepared and placed in SPICE. Copies can be obtained from the Scottish Executive Environment and Rural Affairs Department, Robb's Loan, Edinburgh, EH14 1TY. Notes: [1] 1981 c.29; relevant modifications are contained in the Scotland Act 1998 (Functions exercisable in or as Regards Scotland) Order 1999 (S.I. 1999/1748), article 5 and the Scotland Act 1998 (Modifications of Functions) Order 1999 (S.I. 1999/1756) articles 3, 5 and 6. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46). See section 30(3) for a definition of "the Ministers". Section 30(2) has effect in relation to Scotland as modified by section 30(5). Section 30(5) was inserted by the Scotland Act 1999 (Consequential Modifications) (No. 2) Order (S.I. 1999/1820), Schedule 2, paragraph 68.back [2] O.J. No. L 356, 31.12.02, p.12.back [4] 1967 c. 84. Section 4 was amended by the Fishery Limits Act 1976 (c.86), section 3, the Fisheries Act 1981 (c.29), section 20 and the Sea Fish (Conservation) Act 1992 (c.60), section 1 and has effect in relation to Scotland as modified by section 22A inserted by the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820), Schedule 2, paragraph 43(13).back [6] O.J. No. L 261, 20.10.93, p.1.back [7] O.J. No. L 358, 31.12.98, p, 5.back [8] O.J. No. L 337, 30.12.99, p. 10.back [9] O.J. No. L 358, 31.12.02, p. 49.back
ISBN 0 11061978 1
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