The Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2009

Title and commencement

1.  These Regulations may be cited as the Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2009 and come into force on 30th January 2009.

Amendments

2.  The Offshore Marine Conservation (Natural Habitats &c.) Regulations 2007(1) are amended as follows.

3.  In regulation 32, in paragraphs (4)(b)(i) and (5)(b)(i), for “the ability of any significant group of animals of that species” substitute “their ability”.

4.  In regulation 39—

(a) in paragraph (1)(b), omit the words from “in such a way” to the end;

(b) after paragraph (1) insert—

“(1A) For the purposes of paragraph (1)(b), disturbance of animals includes in particular any disturbance which is likely—

(a) to impair their ability—

(i) to survive, to breed or reproduce, or to rear or nurture their young; or

(ii) in the case of animals of a hibernating or migratory species, to hibernate or migrate; or

(b) to affect significantly the local distribution or abundance of the species to which they belong.”; and

(c) for paragraphs (7) and (8) substitute—

“(7) The Secretary of State, or the Joint Nature Conservation Committee with the approval of the Secretary of State, may publish guidance as to the application of the offences in paragraph (1)(b) or (d) in relation to particular species of animals or particular activities.

(8) In proceedings for an offence under paragraph (1)(b) or (d), a court must take into account any relevant guidance published under paragraph (7).”.

5.  In regulation 40, after paragraph (6) insert—

“(6A) The defences in paragraphs (1) to (3) and (6) do not apply where it is shown by the prosecution that the defendant’s action did not satisfy the conditions in paragraph (6B).

(6B) Those conditions are that—

(a) there was no satisfactory alternative; and

(b) the action was not detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.”.

6.  In regulation 44—

(a) in paragraph (1), after “arrangements”, insert “in accordance with paragraphs (3) to (5)”;

(b) after paragraph (2) insert—

“(3) The joint committee must—

(a) assess how and to what extent surveillance of the conservation status of each relevant habitat and species needs to be carried out, having regard to—

(i) whether a habitat or species is a priority natural habitat type or priority species; and

(ii) the conservation status of the habitat or species; and

(b) advise the Secretary of State as to the need for such surveillance.

(4) The Secretary of State must ensure that the necessary surveillance is carried out on an ongoing basis.

(5) Surveillance for the purposes of this regulation may be carried out by—

(a) the joint committee; or

(b) any other person acting pursuant to, and in accordance with, an agreement with the Secretary of State or the joint committee.

(6) In paragraphs (3) and (5)—

(a) “the joint committee” means the Joint Nature Conservation Committee; and

(b) a “relevant” habitat or species means a habitat or species in the offshore marine area of a type referred to in paragraph (1).”.

7.  In regulation 45—

(a) for paragraph (1) substitute—

“(1) The Secretary of State must, as required in the light of information derived from surveillance carried out under regulation 44 or otherwise arranged for the purposes of Article 11 of the Habitats Directive, ensure that measures are taken for the purpose in paragraph (2).”;

(b) in paragraph (3), for “Where the Secretary of State considers that measures are necessary under paragraph (1), he must” substitute “Where measures are required under paragraph (1), the Secretary of State must”.

8.  In regulation 46—

(a) in paragraph (1), after “arrangements” insert “in accordance with paragraphs (3) to (5); and

(b) after paragraph (2) insert—

“(3) The joint committee must, in relation to the species of animals listed in Annex IV(a) to the Habitats Directive which are found in the offshore marine area—

(a) identify the risks of incidental capture and killing to which those species are subject, and the activities which give rise to such risks;

(b) maintain a record of instances of incidental capture or killing of animals of those species of which the joint committee is aware as a result of the surveillance carried out under regulation 44, the monitoring carried out under this regulation, or otherwise;

(c) assess to what extent monitoring of incidental capture and killing is needed, having regard to—

(i) the risks identified under sub-paragraph (a);

(ii) the instances of incidental capture or killing recorded under sub-paragraph (b);

(iii) whether the species is a priority species; and

(iv) the conservation status of the species; and

(d) advise the Secretary of State as to the need for such monitoring.

(4) The Secretary of State must ensure that the necessary monitoring of incidental capture and killing is carried out.

(5) Monitoring for the purposes of this regulation may be carried out by—

(a) the joint committee;

(b) any other competent authority;

(c) any other person acting pursuant to, and in accordance with—

(i) an agreement with the Secretary of State or the joint committee; or

(ii) a condition of a licence or other authorisation granted by a competent authority.

(6) In paragraphs (3) and (5), “the joint committee” means the Joint Nature Conservation Committee.”.

9.  For regulation 47(1) substitute—

“(1) The Secretary of State must, as required in the light of information derived from monitoring carried out under regulation 46 or otherwise arranged for the purposes of Article 12(4) of the Habitats Directive, make arrangements for further research, or ensure that conservation measures are taken, for the purpose specified in paragraph (2).”.

Hilary Benn

Secretary of State

Department for Environment, Food and Rural Affairs

5th January 2009