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

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PART IGENERAL

Citation, commencement and extent

1.—(1) This Order may be cited as the Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures and Restriction on Days at Sea) (Scotland) Order 2009 and comes into force on 10th October 2009.

(2) Subject to paragraph (3), this Order extends to Scotland and the Scottish zone only.

(3) Insofar as it extends beyond Scotland and the Scottish zone, it does so only as a matter of Scots law.

(4) Nothing in paragraph (2) is to 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—

“British fishing boat” means a fishing boat which is registered in the United Kingdom under Part II of the Merchant Shipping Act 1995(2) or is wholly owned by persons qualified to own British ships for the purposes of that part of that Act;

“cod recovery zone” means the geographical areas defined in paragraph 3 of Annex IIa;

“Community fishing boat” means a fishing boat flying the flag of and registered in a Member State of the European Community;

“Community quota measure” means a provision of the Council Regulation specified in column 1 of Schedule 1 as read with any qualifying words relating to the provision in that column, and in the case of Article 10 of the Council Regulation, with article 3 of this Order;

“Community third country fishing measure” means a provision of the Council Regulation specified in column 1 of Schedule 2;

“day” has the same meaning as in paragraph 5 of Annex IIa;

“equivalent provision” means any provision in any other order made under section 30(2) of the Fisheries Act 1981 for the purposes of implementing a Community quota measure, a Community third county fishing measure, Annex IIa or Regulation 1342/2008, extending to any part of the United Kingdom which has equivalent effect to a 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;

“fishery product” includes fish;

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

“ICES” followed by a roman numeral with or without a letter is to be construed as a reference to whichever of the statistical sub-areas and divisions of the International Council for the Exploration of the Sea(3) is identified therein by that roman numeral or that roman numeral and letter as the case may be;

“licensed” means 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;

“person in charge” 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 IIa in relation to cod;

“Regulation 2807/83” means Commission Regulation (EEC) 2807/83 of 22nd September 1983 laying down detailed rules for recording information on Member States’ catches of fish(5);

“Regulation 2847/93” means Council Regulation (EEC) No. 2847/93 of 12th October 1993 establishing a control system applicable to the common fisheries policy(6);

“Regulation 1006/2008” means Council Regulation (EC) No. 1006/2008 of 29th September 2008 concerning authorisations for fishing activities of Community fishing vessels outside Community waters and the access of third country vessels to Community waters, amending Regulations (EEC) No. 2847/93 and (EC) No. 1627/94 and repealing Regulation (EC) No. 3317/94(7);

“Regulation 1342/2008” means Council Regulation (EC) No. 1342/2008 of 18th December 2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks and repealing Regulation (EC) No. 423/2004(8);

“relevant fishing boat” means—

(a)

in relation to article 3—

(i)

a licensed Scottish fishing boat; and

(ii)

any other fishing boat which is within the Scottish zone;

(b)

in relation to articles 4, 5 and 6—

(i)

a Scottish fishing boat wherever it may be; and

(ii)

any other fishing boat which is within the Scottish zone;

(c)

in relation to articles 8 and 9 a licensed Scottish fishing boat; and

(d)

in relation to articles 10 and 11—

(i)

a licensed Scottish fishing boat wherever it may be; and

(ii)

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

“relevant offence” means an offence under this Order or under any equivalent provision except an offence under article 18;

“Scotland” and “the Scottish zone” have the same meanings assigned to those terms by section 126(1) of the Scotland Act 1998(9);

“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;

“special fishing permit” means a permit issued by the Scottish Ministers, which specifies the number of days or hours for which a vessel may be present within the cod recovery zone, whilst carrying specified regulated gear, in accordance with paragraph 8 of Annex IIa;

“the Council Regulation” means Council Regulation (EC) No. 43/2009 of 16th January 2009 fixing for 2009 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(10); and

“third country fishing boat” means a fishing boat flying the flag of and registered in a state other than a Member State.

(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 this Order, any reference to a logbook, declaration or document includes, in addition to a logbook, declaration or document in writing any—

(a)map, plan, graph or drawing;

(b)photograph;

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

(d)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 therefrom; and

(e)film (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 therefrom.

(3) In this Order, any reference to a—

(a)numbered article is a reference to the article so numbered in this Order;

(b)numbered paragraph is, except where specified as a numbered paragraph of an Annex of the Council Regulation, a reference to the paragraph so numbered in the article in which it appears in this Order;

(c)numbered Schedule is a reference to the Schedule to this Order so numbered; and

(d)numbered Article or Annex (or paragraph thereof) is, except where otherwise indicated, a reference to the Article or Annex (or paragraph thereof) so numbered in the Council Regulation.

(4) Column 2 in each of Schedules 1 and 2 (which provides in relation to each Community quota measure and each Community third country fishing measure an indication of the subject matter of the measure) is not to be read as limiting the scope of any Community quota measure or Community third country fishing measure and is to be disregarded in relation to any question arising as to the construction of this Order.

(5) Any information provided to any authority for the purposes of any provisions of this Order is to 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(5)(a).

(3)

Cmnd. 2586.

(4)

1967 c.84 (“the 1967 Act”); section 4 was substituted by the Fishery Limits Act 1976 (c.86), section 3 and amended by the Fisheries Act 1981 (c.29), section 20 and the Sea Fish (Conservation) Act 1992 (c.60), section 1. It has effect in relation to Scotland as modified by section 22A of the 1967 Act, as inserted by the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820), Schedule 2, paragraph 43(13).

(5)

O.J. No. L 276, 10.10.83, p.1 as corrected by a Corrigendum published in O.J. No. L 353, 15.12.83, p.21 and as amended by Act of Accession of Spain and Portugal, O.J. No. L 302, 15.11.85, p.23; Commission Regulation (EEC) No. 473/89, O.J. No. L 53, 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. L 1, 1.1.95, p.1); Commission Regulation (EEC) No. 2945/95, O.J. No. L 308, 21.12.95, p.18; Commission Regulation (EC) No. 395/98, O.J. No. L 50, 20.2.98, p.17; Commission Regulation (EC) No. 1488/98, O.J. No. L 196, 14.7.98, p.3; Commission Regulation (EC) No. 2737/1999, O.J. No. L 328, 22.12.99, p.54 (corrected by two Corrigenda, published in O.J. No. L 12, 18.1.00, p.36 and O.J. No. L 29, 4.2.00, p.38); Commission Regulation (EC) No. 1965/2001, O.J. No. L 268, 9.10.01, p.23 and Commission Regulation (EC) No. 1804/2005, O.J. No. L 290, 4.11.05, p.10.

(6)

O.J. No. L 261, 20.10.93, p.1 as amended by Council Regulation (EC) No. 2870/95, O.J. No. L 301, 14.12.95, p.1; Council Decision 95/528/EC, O.J. No. L 301, 14.12.95, p.35 (corrected by a Corrigendum published in O.J. No. L 302, 15.12.95, p.45); Council Regulation (EC) No. 2489/96, O.J. No. L 338, 28.12.96, p.12; Council Regulation (EC) No. 686/97, O.J. No. L 102, 19.4.97, p.1; Council Regulation (EC) No. 2205/97, O.J. No. L 304, 7.11.97, p.1; Council Regulation (EC) No. 2635/97, O.J. No. L 356, 31.12.97, p.14; Council Regulation (EC) No. 2846/98, O.J. No. L 358, 31.12.98, p.5 (corrected by a Corrigendum published in O.J. No. L 105, 22.4.99, p.32); Council Regulation (EC) No. 806/2003, O.J. No. L 122, 16.5.03, p.1; Council Regulation (EC) No. 1954/2003, O.J. No. L 289, 7.11.03, p.1; Council Regulation (EC) No. 768/2005, O.J. No. L 128, 21.5.05, p.1; Council Regulation (EC) No. 1967/2006, O.J. No. L 409, 30.12.06, p.11 (corrected by a Corrigendum published in O.J. No. L 36, 8.2.07, p.6); Council Regulation (EC) No. 1098/2007, O.J. No. L 248, 22.9.07, p.1; Council Regulation (EC) No. 1006/2008, O.J. No. L 286, 29.10.08, p.33 and as read with Article 20 of, and modified by Articles 28 and 29 of, Council Regulation (EC) No. 1342/2008, O.J. No. L 348, 24.12.08, p.20.

(7)

O.J. No. L 286, 29.10.08, p.33.

(8)

O.J. No. L 348, 24.12.08, p.20.

(9)

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).

(10)

O.J. No. L 22, 26.1.09, p.1 as amended by Council Regulation (EC) No. 302/2009, O.J. No. L 96, 15.4.09, p.1; Commission Regulation (EC) No. 517/2009, O.J. No. L 155, 18.6.09, p.9 and Commission Regulation (EC) No. 593/2009, O.J. No. L 178, 9.7.09, p.12.

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