The Fisheries and Aquaculture Structures (Grants) (Wales) Regulations 2002

Welsh Statutory Instrument 2002 No. 675 (W.72)

The Fisheries and Aquaculture Structures (Grants) (Wales) Regulations 2002

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STATUTORY INSTRUMENTS

2002 No. 675 (W.72)
SEA FISHERIES, WALES
SEA FISH INDUSTRY
FISH FARMING, WALES
The Fisheries and Aquaculture Structures (Grants) (Wales) Regulations 2002

	Made	12th March 2002
	Coming into force	13th March 2002

INDEX

Regulation

1.	Title, commencement and application

2.	Interpretation

3.	Financial Assistance

4.	Applications

5.	Approval of applications

6.	Eligibility and claims for payment of financial assistance

7.	Method of payment of financial assistance

8.	Undertakings

9.	Information

10.

Records

11.	Exercise of functions by the Sea Fish Industry Authority.

12.	Assistance to authorised officers

13.	Powers of authorised officers

14.	Protection of officers

15.	Reduction, withholding and recovery of financial assistance

16.	Recovery of Interest

17.	Offences and penalties

18.	Prosecutions

The National Assembly for Wales being designated[1] for the purposes of section 2(2) of the European Communities Act 1972[2] in relation to the common agricultural policy of the European Community, in exercise of the powers conferred on it by the said section 2(2) and of all other powers enabling it in that behalf, hereby makes the following Regulations:

Title, commencement and application
     1. - (1) These Regulations are called as the Fisheries and Aquaculture Structures (Grants) (Wales) Regulations 2002 and shall come into force on 13th March 2002.

    (2) These Regulations apply in relation to Wales only.

Interpretation
     2. - (1) In these Regulations, unless the context otherwise requires -

diwygio

cais

ceisydd

cymeradwyaeth

cymeradwyo

a gymeradwywyd

gweithrediad a gymeradwywyd

swyddog awdurdodedig

and includes any duly appointed official of the Commission who accompanies such an authorised officer;

"Community fishing vessel"("cwch bysgota Gymunedol") has the meaning given to it in article 3 of Council Regulation (EEC) No. 3760/92[

y ddeddfwriaeth Gymunedol

Rheoliad y Cyngor 1260/1999

Rheoliad y Cyngor 2792/1999

gwariant cymwys

cymorth ariannol

grant

LIBOR

y Cynulliad Cenedlaethol

amodau perthnasol

dogfennau perthnasol

offer perthnasol

gweithrediad perthnasol

gweithfeydd

    (2) Other expressions used in these Regulations have, insofar as the context admits, the same meanings as in the Community legislation.

    (3) Any reference in these Regulations to a numbered regulation shall, unless the context otherwise requires, be construed as a reference to the regulation bearing that number in these Regulations.

    (4) Any reference in these Regulations to the doing of anything which under any regulation is required to be or may be done or evidenced in writing or otherwise using a document, notice or instrument shall, in circumstances where it is appropriate, be regarded as including by electronic means where arrangements have been made by the National Assembly to enable or provide for electronic means to be used.

Financial Assistance
     3. - (1) Subject to the provisions of Community legislation and these Regulations, the National Assembly may pay Community aid and, if it so determines, a grant to any person -

(a) who has, for the purpose of obtaining financial assistance, made an application in accordance with regulation 4, for approval -

(b) whose application it has so approved.

(2) In determining under paragraph (1) -

(a) whether to pay a grant in addition to Community aid; and

(b) the amount of any such grant it has determined to make,

the National Assembly shall have regard to the requirements of the Community legislation and, in particular the limits on total State financial participation as set out in Annex IV to Council Regulation 2792/1999.

Applications
     4. - (1) Applications shall be made in such form and manner and at such time, shall include such information and shall be delivered at such address as the National Assembly may from time to time require.

    (2) Without prejudice to paragraph (1), the National Assembly may from time to time specify categories of relevant operation in respect of which applications may be made over any period of time that it specifies.

    (3) Applicants shall furnish all such further information and documents relating to the application as the National Assembly may require.

Approval of applications
     5. - (1) Subject to the Community legislation the National Assembly may -

(a) refuse to approve an application for the purpose of the receipt of financial assistance; or

(b) approve it in whole or in part and either unconditionally or subject to such conditions as it may determine.

(2) The National Assembly may, with the applicant's consent, from time to time vary an approval by amending any conditions to which it has been made subject or by adding conditions.

(3) The National Assembly shall -

(a) notify applicants in writing of the result of their applications;

(b) notify beneficiaries of any conditions to which an approval has been made subject or which have been varied pursuant to this regulation.

(4) When the National Assembly notifies an applicant that it has refused to approve an application or a beneficiary that it has granted an approval subject to conditions or has varied the terms of an existing approval, it shall give such applicant or beneficiary -

(a) written reasons for its decision; and

(b) an opportunity to make representations in relation thereto within such time as the National Assembly considers reasonable and has notified to the applicant or beneficiary.

    (5) Where the National Assembly has received any representations in accordance with paragraph (4) it shall consider them and may confirm its decision or substitute a different decision.

    (6) The National Assembly shall notify the applicant or beneficiary in writing of any decision confirmed or substituted under paragraph (5).

Eligibility and claims for payment of financial assistance
     6. - (1) Subject to paragraph (2) below and to regulation 15, a beneficiary shall be eligible for payment of financial assistance.

    (2) No financial assistance shall be paid in respect of an approved application unless the National Assembly has been supplied with -

(a) satisfactory evidence that the amount of expenditure for which financial assistance is claimed has been incurred including details of any discount received by the applicant; and

(b) satisfactory evidence that the approved operation, or the part of the operation to which the payment relates, has been properly carried out.

Method of payment of financial assistance
7. Payments by way of financial assistance may be made -

(a) at such time, or by such instalments at such intervals or times; and

(b) subject to such conditions,

(a) keep a record of all expenditure incurred in connection with an approved operation; and

(b) during the carrying out of the approved operation, on completion of the approved operation and thereafter for the duration of the control period retain such record together with any relevant documents, except to the extent that an authorised officer has required the production of, or has removed, any of them under regulation 13(5) below.

(2) For the purposes of this regulation the "control period" means in relation to an approved operation:

(a) a period of six years commencing with the last payment of financial assistance in respect of that operation; or

(b) that six year period plus any further period that has been notified by the National Assembly to the recipient of financial assistance at any time before the expiry of that initial six year period,

but in determining in either case the date on which the control period shall come to an end no account shall be taken of any time between the commencement and final determination or settlement of any proceedings brought under regulation 15 for the recovery of any financial assistance paid in respect of that approved operation.

Exercise of functions by the Sea Fish Industry Authority
     11. - (1) Without prejudice to section 2(5) of the Fisheries Act 1981[12] or to its ability to exercise any functions under these Regulations itself, the National Assembly may, from time to time, require the Authority to exercise any of its functions under these Regulations either generally or in relation to financial assistance in connection with particular categories of relevant operation and may from time to time issue directions as to the manner in which such functions may be exercised.

    (2) Any functions of the National Assembly under these Regulations which the Authority has been required to exercise pursuant to paragraph 1 shall be discharged by members of the Authority appointed under section 1(3) of the Fisheries Act 1981 to the exclusion of the other members.

    (3) The Authority shall keep such accounts with respect to any payments made by or to it pursuant to its exercise of functions under these Regulations as the National Assembly may direct and shall prepare in respect of each financial year a statement of the accounts in such form and giving such information as may be directed.

    (4) The accounts for each financial year shall, in accordance with a scheme of audit approved by the National Assembly, be audited by the persons appointed in respect of that year to audit the other accounts of the Authority and the auditors shall be furnished by the Authority with copies of the statements of accounts.

    (5) The auditors shall complete the audit of the accounts and shall send to the National Assembly copies of the statement of accounts and of their report on the accounts and the statement as soon as possible after the end of the financial year to which they relate and in any event not later than 30th September following the end of that year.

    (6) The National Assembly and the Controller and Auditor General shall be entitled to inspect all books, papers and other records of the Authority relating to, or to matters dealt with, in the accounts required to be kept pursuant to this regulation.

Assistance to authorised officers
     12. Any beneficiary or any employee, servant or agent of any beneficiary shall give to an authorised officer such assistance as that officer may reasonably request to exercise any power conferred upon him by regulation 13.

Powers of authorised officers
     13. - (1) An authorised officer may at all reasonable hours and on producing, if required to do so, some duly authenticated document showing his authority, exercise the powers specified in this regulation for the purposes of -

(a) verifying the accuracy of any information or evidence contained in or included with an application or supplied pursuant to regulation 6 or 9;

(b) ascertaining whether and to what extent any expenditure in respect of which financial assistance is claimed should be approved;

(c) ascertaining whether and to what extent any undertakings given by a beneficiary under regulation 8 and any relevant conditions have been complied with;

(d) ascertaining whether and to what extent any amount of financial assistance is payable, or should be reduced, withheld or recovered under regulation 15 below;

(e) ascertaining whether an offence under regulation 17 has been or is being committed; or

(f) otherwise ascertaining, pursuant to Article 38 of Regulation 1260/1999, whether Community aid is being efficiently and correctly used, and such powers shall be exercisable for those purposes on a random, spot-check or sample basis as well as by reference to the particular circumstances or suspected circumstances of individual cases.

    (2) An authorised officer may enter upon any premises, other than premises used only as a dwelling, which are, or which such officer has reasonable cause to believe are, relevant premises.

    (3) Any authorised officer who has entered any premises in accordance with paragraph (2) above may inspect those premises, any equipment which is, or which such officer has reasonable cause to believe is, relevant equipment and any documents on those premises which are, or which such officer has reasonable cause to believe are, relevant documents.

    (4) An authorised officer entering any premises by virtue of this regulation may take such other person as the authorised officer considers necessary and regulations 12 and 14 and paragraphs (2), (3) and (5) of this regulation shall apply in relation to such other persons when acting under the instructions of the authorised officer as if they were authorised officers.

    (5) An authorised officer may -

(a) require a beneficiary or an employee, servant or agent of a beneficiary to produce any relevant documents and to supply such additional information in that person's possession or under his control relating to an application or an approved operation as the officer may reasonably request;

(b) inspect any such documents and, if any such documents are kept by means of a computer, have access to, and inspect and check the operation of, any computer and any associated apparatus or material which is or has been used in connection with those documents;

(c) require that copies of, or extracts from, any relevant documents be produced; or

(d) remove and retain for a reasonable period any such relevant document which he or she has reason to believe may be required as evidence in proceedings under these Regulations or which the National Assembly may be required to make available to the Commission pursuant to Article 38(6) of Regulation 1260/1999 and, if any such document is kept by means of a computer, require it to be produced in a form in which it may be taken away and in which it is visible and legible.

(6) In this regulation -

"premises" includes any vessel or other vehicle; and

"relevant premises" means any premises to which an approved operation relates or in which relevant documents or relevant equipment are retained.

Protection of officers
14. Any authorised officer shall not be liable in any civil or criminal proceedings for anything done in the purported exercise of the powers conferred on him or her by virtue of regulation 13 if the court is satisfied that the act was done in good faith, that there were reasonable grounds for doing it and that it was done with reasonable skill and care.

Reduction, withholding and recovery of financial assistance
15. - (1) Subject to the provisions of this regulation, if, at any time after the National Assembly has approved an application, it appears to it that -

(a) any relevant conditions have not been complied with in whole or in part;

(b) the application so approved (or any part of it) was not an application (or part) which the beneficiary was eligible to make;

(c) the beneficiary or an employee, servant or agent of a beneficiary -

(d) the approved operation was commenced before the date on which the National Assembly gave written permission to do so;

(e) the approved operation in respect of which the expenditure was incurred has not been carried out or has not been carried out properly or in accordance with the approval in relation thereto;

(f) the approved operation has been or is being unreasonably delayed beyond the time limits set out in the notification of approval or is unlikely to be completed;

(g) any undertakings given by the beneficiary have not been complied with;

(h) the Commission has decided pursuant to Articles 38 or 39 of Council Regulation 1260/1999 to suspend or recover Community aid;

(i) in any case of financial assistance for the construction or modernisation of a fishing vessel, any of the events specified in paragraph (2) below has occurred before the elapse of ten years from the completion of the construction or five years from the completion of the modernisation of the vessel; or

(j) in any case of financial assistance for any relevant operation other than for the construction or modernisation of a fishing vessel, any of the events specified in paragraph (3) below has occurred before the elapse of six years from the purchase of the relevant equipment or ten years from the purchase of the premises or the completion of the works,

the National Assembly may revoke the approval in whole or in part or may reduce or withhold any financial assistance in respect of the approved operation and, if payment by way of financial assistance has been made, may on demand recover an amount equal to the whole or any part of the payment which has been so made.

(2) The events mentioned in sub-paragraph (i) of paragraph (1) above are -

(a) the total loss of the vessel;

(b) the damage or destruction of any relevant equipment resulting in payment under an insurance policy or by way of compensation or damages;

(c) a mortgage of the vessel (other than a mortgage created for the raising of money applied to the cost of construction or modernisation of the vessel, being a mortgage approved by the National Assembly before it was made);

(d) the use of the vessel primarily for purposes other than those in respect of which financial assistance was approved;

(e) a disposal, whether by sale or otherwise, of the vessel or any part thereof, its engine or any part thereof or any relevant equipment or other equipment or apparatus used on or in connection with the vessel; or

(f) the vessel ceasing to be a Community fishing vessel.

(3) The events mentioned in sub-paragraph (j) of paragraph (1) above are -

(a) the total loss of the relevant equipment;

(b) the damage or destruction of any relevant equipment, premises, or works resulting in payment under an insurance policy or by way of compensation or damages;

(c) the creation of a right in security over the relevant equipment, premises, or works (other than a right in security created for the raising of money applied to the cost of construction or modernisation of the relevant equipment, premises, or works, being a right in security approved by the National Assembly before it was made);

(d) the use of the relevant equipment, premises, or works primarily for purposes other than those in respect of which financial assistance was approved; or

(e) a disposal whether by sale or otherwise of the relevant equipment, premises, or works or any part thereof.

(4) Where sub - paragraph (i) or (j) of paragraph (1) applies and none of the other sub-paragraphs of that paragraph applies, the maximum amount that the National Assembly may recover from a beneficiary pursuant to paragraph (1) shall be an amount representing the unexpired part of the ten, or as the case may be, five or six year period calculated as a proportionate amount of the total payment of financial assistance.

(5) Before taking any step specified in paragraph (1), the National Assembly shall -

(a) give to the beneficiary a written explanation of the reasons for the step proposed to be taken;

(b) afford the beneficiary the opportunity of making written representations within such time as the National Assembly considers reasonable; and

(c) consider any representations.

Recovery of Interest
     16. - (1) If the National Assembly decides to recover any amount under regulation 15, it may also recover on demand interest on that amount at a rate of 1 percentage point above LIBOR calculated on a daily basis for the period beginning on the day on which the financial assistance in question was paid until the National Assembly recovers the amount.

    (2) In the case of any amount recoverable under regulation 15(4) above, interest recoverable under paragraph 16(1) above shall be calculated not from the day on which the financial assistance was paid, but from the day on which the event giving rise to the recovery occurred.

    (3) In any proceedings relating to the recovery of such interest, a certificate issued by the National Assembly showing the rates of interest applicable, the amount of such interest recoverable and the period for which interest is calculated shall, unless the contrary is shown, be conclusive evidence of those matters.

Offences and penalties
     17. - (1) If any person, for the purposes of obtaining financial assistance for himself or any other person -