The Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2005

PART I PRELIMINARY

Citation, commencement and extent

1.—(1) This Order may be cited as the Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2005 and shall come into force on 1st March 2005.

(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)(1) 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–

“Annex IVa” means Annex IVa to Council Regulation 27/2005 of 22nd December 2004 fixing for 2005 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required(2);

“Annex IVc” means Annex IVc to Council Regulation 27/2005 of 22nd December 2004 fixing for 2005 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required;

“British fishing boat” means a fishing boat which is registered in the United Kingdom under Part II of the Merchant Shipping Act 1995(3) or is owned wholly by persons qualified to own British ships for the purposes of that part of that Act;

“cod recovery zone” means the geographical area defined in paragraph 2 of Annex IVa;

“day” has the same meaning as in paragraph 3(b) of Annex IVa and Annex IVc;

“equivalent provision” means any provision in any other order made under section 30(2) of the Fisheries Act 1981 for the purposes of implementing Annex IVa, Annex IVc or Regulation 423/2004, extending to any part of the United Kingdom which has equivalent effect to a specified provision in this Order, proceedings in respect of which, by virtue of section 30(2A) of the Fisheries Act 1981, may be commenced in any place in the United Kingdom;

“English fishing boat” means a fishing vessel which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995 and whose entry in the register specifies a port in England as the port to which the vessel is to be treated as belonging;

“fishery product” includes fish;

“fishing boat” includes any vessel to which Annex IVa or Annex IVc applies;

“foreign fishing boat” means a fishing boat which is not a British fishing boat but to which Annex IVa or Annex IVc applies;

“Northern Ireland fishing boat” means a fishing vessel which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995 and whose entry in the register specifies a port in Northern Ireland as the port to which the vessel is to be treated as belonging;

“person in charge” in relation to a relevant fishing boat or a foreign fishing boat, means the owner, master or charterer or the agent of the owner, master or charterer;

“regulated gear” means any gear within a grouping of fishing gears specified in paragraph 4 of Annex IVa in relation to cod and paragraph 4 of Annex IVc in relation to sole;

“Regulation 2807/83” means Commission Regulation (EEC) 2807/1983 which lays down detailed rules for recording information on Member States' catches of fish(4);

“Regulation 2847/93” means Council Regulation (EEC) 2847/1993 which establishes a control system applicable to the common fisheries policy(5);

“Regulation 423/2004” means Council Regulation (EC) No. 423/2004 of 26th February 2004 establishing measures for the recovery of cod stocks(6);

“relevant fishing boat” means–

(a)

except in relation to articles 3, 7, 13 and 17–

(i)

a Scottish fishing boat wherever it may be; and

(ii)

any other fishing boat which is within the Scottish zone other than a foreign fishing boat;

(b)

in relation to articles 3 and 13, a Scottish fishing boat;

(c)

in relation to articles 7 and 17–

(i)

a Scottish fishing boat; and

(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(7), but does not include a British fishing boat which has an overall length of less than 10 metres;

“relevant offence” means an offence under this Order or under any equivalent provision;

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

“Scottish zone” has the same meaning as in section 126(1) of the Scotland Act 1998(8);

“sole recovery zone” means the geographical area defined in paragraph 2 of Annex IVc;

“unused day” means any period of 24 consecutive hours in the cod recovery zone or the sole recovery zone to which a relevant fishing boat carrying regulated gear is entitled to and has not used in any management period determined under article 3 or 13;

“Welsh fishing boat” means a fishing vessel which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995 and whose entry in the register specifies a port in Wales as the port to which the vessel is treated as belonging.

(2) In this Order, “logbook” has the same meaning as in Article 6 of Regulation 2847/93 as read with Regulation 2807/83, and for the purposes of any provision of this Order, other than article 23, any reference to a document, logbook or declaration includes, in addition to a document, logbook or declaration in writing–

(a) any map, plan, graph or drawing;

(b) any photograph;

(c) any data, howsoever reproduced, communicated via a satellite-based vessel monitoring system established under Article 3.1 of Regulation 2847/93;

(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.

(1)

Section 30(2A) was inserted by the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820), Schedule 2, paragraph 68.

(2)

O.J. No. L 12, 14.1.05, p.1.

(3)

1995 c. 21.

(4)

O.J. No. L 276, 10.10 83, p.1; the last amending instrument is Commission Regulation (EC) No. 1965/2004 (O.J. No. L 268, 9.10.01, p.28).

(5)

O.J. No. L 261, 20.10.93, p.1; the last amending instrument is Council Regulation (EC) No. 1454/2003 (O.J. No. L 289 7.11.2003, p1).

(6)

O.J. No. L 70, 9.3.04, p.8.

(7)

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).

(8)

1998 c. 46. The sea within British fishery limits (that is, the limits set by or under section 1 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).