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SCOTTISH STATUTORY INSTRUMENTS

2007 No. 127
SEA FISHERIES
The Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2007

	Made	28th February 2007
	Laid before the Scottish Parliament	1st March 2007
	Coming into force	23rd March 2007

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 (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2007 and shall come into force on 23rd March 2007.

    (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.

Interpretation
     2. —(1) In this Order–

"authorised officer" means a person authorised by the Scottish Ministers for the purpose of article 4(1);

"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 9 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 3;

"the Council Regulation" means Council Regulation (EC) No. 41/2007 of 21st December 2006[

2

3

"fishery product" includes fish;

4

"pelagic weighing system" means any system used to weigh herring, mackerel or horse mackerel for the purposes of paragraph 1 of Annex III to the Council Regulation;

5

"relevant offence" means an offence under–

"specified Community provision" means a provision of the Council Regulation or Regulation 1434/98 specified in column 1 of Schedule 2 as read with any qualifying words relating to the provision in that column; 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, any reference to a logbook, declaration or document includes, in addition to a logbook, declaration or document in writing any–

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

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

    (5) Column 2 of Schedule 2 (which provides in relation to each specified Community provision an indication of the subject matter of the provision) shall not be read as limiting the scope of any specified Community provision and shall be disregarded in relation to any question arising as to the construction of this Order.

    (6) Column 2 of Schedule 3 (which provides in relation to each Community third country fishing measure an indication of the subject matter of the measure) shall not be read as limiting the scope of any Community third country fishing measure and shall be disregarded in relation to any question arising as to the construction of this Order.

Landing of unsorted catches
     3. —(1) This article applies for the purposes of Article 9.

    (2) No catch that includes any unsorted fish may be landed at a harbour unless–

(a) the master of the fishing boat from which the catch is to be landed applies before landing to a British sea fishery officer at the harbour for a decision as to the suitability of the harbour for landing the catch; and

(b) having regard to the overall size and characteristics of the catch, the British sea fishery officer–

(3) The master, the owner and charterer (if any) of a fishing boat are each guilty of an offence if a catch that includes unsorted fish is landed from the fishing boat at a harbour before the master is notified of the decision of a British sea fishery officer at the harbour in question under paragraph (2)(b)(ii).

Approval of pelagic weighing systems
4. —(1) The Scottish Ministers may from time to time require authorised officers to–

(a) conduct any tests necessary to calibrate any pelagic weighing system;

(b) provide them with advice on the sealing of any pelagic weighing system which shall include advice on whether the system can be fixed or adjusted in a way which would cause the pelagic weighing system to provide an inaccurate weight reading and, if so, how the system may be fixed or adjusted; and

(c) provide them with a report relating to the suitability of any pelagic weighing system.

    (2) The Scottish Ministers may approve for fisheries control purposes a pelagic weighing system in respect of which a report referred to in paragraph (1)(c) has been provided.

    (3) The Scottish Ministers may decline to approve a pelagic weighing system where they have reasonable grounds for suspecting that the system may be fixed or adjusted in a way which would cause the pelagic weighing system to provide an inaccurate weight reading.

    (4) The Scottish Ministers may–

(a) determine conditions to which an approval given under paragraph (2) may be subject; and

(b) at any time amend such conditions.

    (5) Where there is a contravention of, or a failure to comply with, a condition of an approval determined under paragraph (4) the owner of the pelagic weighing system, the operator of the pelagic weighing system and the owner of the premises in which the pelagic weighing system is located shall each be guilty of an offence.

    (6) Where any person interferes with a pelagic weighing system approved under paragraph (2) causing the pelagic weighing system to provide an inaccurate weight reading that person shall be guilty of an offence.

    (7) Any person who fails without reasonable excuse to comply with the request of an authorised officer exercising functions under paragraph (1) shall be guilty of an offence.

Weighing procedures for herring, mackerel and horse mackerel
     5. —(1) Subject to article 6, where a fishing boat lands in excess of 10 tonnes of herring, mackerel or horse mackerel or a combination thereof within Scotland, the buyer, the agent of the buyer or the holder of the fish shall weigh the fish landed in accordance with paragraph (2) or (3) prior to the fish being sorted, processed, held in cold storage, transported from the port of landing or resold.

    (2) Fish referred to in paragraph (1) which are fresh shall be weighed using a pelagic weighing system which has been–

(a) approved for fisheries control purposes by the Scottish Ministers under article 4(2); or

(b) passed as fit for trade use in accordance with regulation 15 of the Weighing Equipment (Beltweighers) Regulations 2001[

10

    (3) Fish referred to in paragraph (1) which are frozen shall be weighed in accordance with paragraph 1.8.1 or 1.8.2, Part A of Annex III.

    (4) Where a buyer, agent of a buyer or a holder of the fish fails to comply with paragraph (1) or (2) or (3) that person is guilty of an offence.

Transport of fresh fish before weighing
     6. —(1) Fish referred to in article 5(1) which are fresh may be weighed in accordance with article 5 after being transported from the port of landing to a place of weighing which is within Scotland and not more than 100 km from the port of landing provided one of the conditions in paragraph (2) is met.

    (2) The conditions are–

(a) the vehicle in which the fish are transported is accompanied by a British sea fishery officer from the port of landing to the place where the fish are weighed; or

(b) the fish are being transported in accordance with an approval issued under article 7.

Approval to transport fresh fish before weighing
     7. —(1) The buyer, the agent of the buyer or the holder of fish referred to in article 5(1) which are fresh may apply to a British sea fishery officer at the port of landing for approval to transport the fish before weighing in accordance with article 5.

    (2) Any approval issued by a British sea fishery officer under paragraph (1) shall be subject to the conditions in paragraph (3).

    (3) The conditions are–

(a) immediately prior to the vehicle in which the fish are being transported leaving the port of landing, the buyer or agent of the buyer or the holder of the fish shall provide to a British sea fishery officer at the port of landing a declaration which shall be in writing and dated and signed by the buyer or agent stating the–

(b) a copy of the declaration under sub-paragraph (a) shall be retained by the driver of the vehicle during transport of the fish and given to the receiver of the fish at the place where the fish are to be weighed.

    (4) Where a person to whom an approval has been granted under paragraph (1) fails to comply with any of the conditions in paragraph (3), that person is guilty of an offence.

Vessels engaged in illegal, unreported and unregulated fisheries in the North-East Atlantic
     8. —(1) The master, owner and charterer (if any) of an IUU vessel or a vessel on the provisional list are each guilty of an offence if, in relation to the vessel in question, there is a contravention of, or failure to comply with that part of paragraph 1.1(a) of Annex XVII which prohibits landing or transhipping.

    (2) The master, owner and charterer (if any) of a vessel (other than an IUU vessel or a vessel on the provisional list) referred to in paragraph 1.1(b) of Annex XVII are each guilty of an offence if, in relation to that vessel, there is a contravention of that paragraph.

    (3) A person who contravenes paragraph 1.1(c) of Annex XVII is guilty of an offence.

    (4) The master, owner and charterer (if any) of an IUU vessel are each guilty of an offence if, in relation to the vessel in question there is a contravention or failure to comply with paragraph 1.2(b) of Annex XVII.

    (5) In this article–

(a) "IUU vessel" means a vessel listed in Appendix 1 to Annex XVII;

(b) a reference to Annex XVII is to Annex XVII as read with Article 81; and

(c) "vessel on the provisional list" means a vessel on the provisional list referred to in paragraph 1.1 of Annex XVII.

Vessels engaged in illegal, unreported and unregulated fisheries in the Northwest Atlantic
     9. —(1) The master, owner and charterer (if any) of an IUU vessel are each guilty of an offence if, in relation to the vessel in question, there is a contravention of, or failure to comply with paragraph 2.1(c), (d), (e) and (g) of Annex XVII.

    (2) The master, owner and charterer (if any) of a vessel (other than an IUU vessel) referred to in paragraph 2.1(a) of Annex XVII are each guilty of an offence if, in relation to that vessel there is a contravention of that paragraph.

    (3) A person who contravenes paragraph 2.1(b) of Annex XVII is guilty of an offence.

    (4) in this article–

(a) "IUU vessel" means a vessel listed in Appendix 2 to Annex XVII; and

(b) a reference to Annex XVII is to Annex XVII as read with Article 81.

By catch quota – dog fish
10. The master, owner and charterer (if any) of a fishing boat are each guilty of an offence if spurdog/dogfish (squalus acanthias) comprise more than 5% by live weight of the catch retained on board in contravention of Annex IA.

Offences
11. —(1) Where there is, in respect of any–

(a) Scottish fishing boat wherever it may be; or

(b) Community fishing boat or third country fishing boat within the Scottish zone,

a contravention of, or failure to comply with, any Community quota measure, the master, the owner and the charterer (if any) shall each be guilty of an offence.

(2) Where there is in respect of–

(a) a Scottish fishing boat wherever it may be; or

(b) any Community fishing boat or third country fishing boat within the Scottish zone,

a contravention of, or failure to comply with any specified Community provision, the master, the owner and the charterer (if any) shall each be guilty of an offence.

    (3) Where there is, in respect of any third country fishing boat within the Scottish zone, a contravention of, or failure to comply with, any Community third country fishing measure, the master, the owner and the charterer (if any) shall each be guilty of an offence.

    (4) Nothing in this Order shall be taken to constitute an offence to land, from a Scottish fishing boat, an unsorted catch at a harbour outwith Scotland where sampling programmes mentioned in paragraph 1 of Article 9 are in place.

Penalties
     12. —(1) A person guilty of an offence under article 3(3), or 4(5), (6) or (7), or 5(4), or 7(4), or 8(1), (2), (3) or (4), or 9(1), (2) or (3), or 10 or under any equivalent provision extending to any other part of the United Kingdom, proceedings in respect of which were brought in Scotland by virtue of section 30(2A) of the Fisheries Act 1981, shall be liable–

(a) on summary conviction, to a fine not exceeding £50,000; and

(b) on conviction on indictment, to a fine.

(2) A person guilty of an offence under article 11(1), (2) or (3), or under any equivalent provision extending to any other part of the United Kingdom, proceedings in respect of which were brought in Scotland by virtue of section 30(2A) of the Fisheries Act 1981, shall be liable–

(a) on summary conviction, to a fine not exceeding the amount specified in column 3 of the Schedules to this Order in relation to the Community quota measure, specified Community provision or Community third country fishing measure, the contravention of, or failure to comply with, which founded the offence; and

(b) on conviction on indictment, to a fine.

    (3) A person guilty of an offence under article 5(4) or 11(1), (2) or (3) shall also be liable to the forfeiture of any fish in respect of which the offence was committed, or, on summary conviction only, to a fine not exceeding the value of any fish in respect of which the offence was committed.

    (4) A person guilty of an offence under article 11(1), (2) or (3) shall also be liable to the forfeiture of any net or other fishing gear in respect of which the offence was committed, or which was used in committing the offence, or which was used for catching any fish in respect of which the offence was committed.

Recovery of fines
     13. —(1) Without prejudice to the provisions of section 221 of the Criminal Procedure (Scotland) Act 1995[11], where a court has imposed a fine on any person in respect of a relevant offence or an offence under article 18, that court may for the purposes of recovering the fine–

whichever first occurs; or

(b) subject to paragraph (2), at any time after the imposition of the fine, issue a warrant for the arrestment and sale of any such boat, its gear and catch.

    (2) The court shall not issue a warrant under paragraph (l)(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.

    (3) A warrant issued under paragraph (1)(b), whatever the amount of the fine imposed, may be executed in the same manner as if the proceedings were on an extract decree of the sheriff in a summary cause.

    (4) Where in relation to a fine in respect of a relevant offence a transfer of fine order under section 222 of the Criminal Procedure (Scotland) Act 1995, section 90 of the Magistrates' Courts Act 1980[12] or article 95 of the Magistrates' Courts (Northern Ireland) Order 1981[13] specifies a court of summary jurisdiction in Scotland, this article shall apply as if the fine were a fine imposed by that court.

Powers of British sea-fishery officers in relation to fishing boats
     14. —(1) For the purposes of enforcement of article 11(1) or (2), or any provision extending to any other part of the United Kingdom made for the purposes of implementing a Community quota measure or a specified Community provision, a British sea-fishery officer may exercise, in relation to any–

(a) Scottish fishing boat wherever it may be; or

(b) Community fishing boat within the Scottish zone,

the powers conferred by paragraphs (3), (4) and (5).

    (2) For the purposes of enforcement of article 11(2) or (3), or any provision extending to any other part of the United Kingdom made for the purposes of implementing a specified Community provision or a Community third country fishing measure, a British sea-fishery officer may exercise the powers conferred by paragraphs (3), (4) and (5) in relation to any third country fishing boat within the Scottish zone.

    (3) A British sea fishery officer may go on board the boat, with or without persons assigned to assist 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.

    (4) A British sea fishery officer may require the attendance of the master and other persons on board the boat and may make any examination and inquiry which appears to that officer to be necessary for the purposes of enforcement referred to in paragraph (1) or (2) and, in particular, may–

(a) search for fishery products or fishing gear on the boat and may examine any such products on the boat and the equipment of the boat, including the fishing gear and require persons on board the boat to do anything which appears to that officer to be necessary for facilitating the examination;

(b) require any person on board the boat to produce any document relating to the boat, to any fishing operations ancillary thereto or to the persons on board which is in the custody or possession of that person;

(c) for the purpose of ascertaining whether a relevant offence has been committed, 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) inspect, take copies of and retain in the possession of that officer while any search, examination or inspection provided for under this article is being carried out, any such document produced to that officer or found on board;

(e) require the master or any person for the time being in charge of the boat to render all such documents on a computer system into visible and legible form and to produce them in a form in which they may be taken away; and

(f) where the boat is one in relation to which that officer has reason to suspect that a relevant offence has been committed, seize and detain any such document produced to that 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.

(5) Where it appears to a British sea-fishery officer that a relevant offence has at any time been committed the officer may–

(a) require the master of the boat in relation to which the offence took place to take, or the officer may take, the boat and its crew to the port which appears to the officer to be the nearest convenient port; and

(b) 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 the officer shall serve notice in writing on the master 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.

Powers of British sea-fishery officers on land
15. —(1) For the purpose of enforcing a relevant offence any British sea fishery officer may–

(a) enter and inspect at any reasonable time any premises used for carrying on any business in connection with the operation of fishing boats or activities connected therewith or ancillary thereto or with the treatment, storage or sale of fishery products;

(b) take with the officer such other persons as appear to the 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, transhipment, sale or disposal of any fishery product;

(g) for the purpose of ascertaining whether a relevant offence has been committed, 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 or found on the premises;

(i) require any appropriate or responsible person to render any such documents on a computer system into a visible and legible form and to produce them in a form in which they may be taken away; and

(j) if the 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 purposes of enabling the document to be used as evidence in proceedings for the offence.

(2) The provisions of paragraph (1) shall 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 inspection.

(3) If the sheriff by information on oath is–

(a) satisfied that there are reasonable grounds to believe that any documents or other items which a British sea fishery officer has power under this article to inspect are on any premises and that their inspection is likely to disclose evidence of the commission of a relevant offence; and

(b) also satisfied either–

the sheriff may by signed warrant, valid for a period of no more than 1 month, authorise a British sea fishery officer to enter the premises, if need be by using 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
16. —(1) Any British sea-fishery officer may seize–

(a) in Scotland or in the Scottish zone; or

(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.

(2) This article applies to–

(a) any fishery product (including any receptacle which contains such product), in respect of which the officer has reasonable grounds to suspect that a relevant offence has been committed; and

(b) any net or other fishing gear which the officer has reasonable grounds to suspect has been used in the commission of such offence.

(3) For the purposes of paragraph 9.8 of Annex III the Scottish Ministers are the competent authorities.

Protection of officers
17. A British sea fishery officer or a person assisting such an officer by virtue of article 14(3) or 15(l)(b) or (3) shall not be liable in any civil or criminal proceedings for anything done in the purported exercise of the powers conferred by articles 14, 15, or 16 if the court is satisfied that–

(a) the act was done in good faith;

(b) there were reasonable grounds for doing it; and

(c) it was done with reasonable skill and care.

Obstruction of officers
18. —(1) Any person who–

(a) fails without reasonable excuse to comply with any requirement imposed by a British sea fishery officer under the powers conferred on such officers by article 14 or 15;

(b) without reasonable excuse prevents, or attempts to prevent, any other person from complying with such requirement; or

(c) obstructs any such officer in the exercise of any of those powers or the powers conferred by article 16,

shall be guilty of an offence.

(2) Any person guilty of an offence under paragraph (1) shall be liable–

(a) on summary conviction, to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment, to a fine.

Offences by bodies corporate
     19. —(1) Where an offence under this Order committed by a body corporate or a partnership is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or similar officer of the body corporate, or any person who was purporting to act in any such capacity (or in the case of a partnership, a partner or a person who was purporting to act as such), that person as well as the body corporate or the partnership, as the case may be, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

    (2) Where the affairs of a body corporate are managed by its members, the provisions of paragraph (1) shall apply in relation to the acts and defaults of a member in connection with the member's functions of management as if the member were a director of the body corporate.

Admissibility in evidence of logbooks and other documents
     20. —(1) Any–

(a) logbook kept under Article 6, 17.2 or 28c;

(b) declaration submitted under Article 8.1, 11, 12, 17.2 or 28f;

(c) effort report completed under Articles 19b and 19c;

(d) sales note submitted under Article 9;

(e) document drawn up under Article 13; or

(f) document containing required information received by a fisheries monitoring centre established under Article 3.7,

of Regulation 2847/93[14] shall, in any proceedings for an offence under article 11(1) or 11(2), or any equivalent provision extending to any other part of the United Kingdom made for the purposes of implementing a Community quota measure or a specified Community 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 to the matters stated therein.

(2) For the purposes of paragraph (1), "required information" shall mean data relating to–

as communicated via a satellite-based vessel monitoring system established under Article 3.1 of Regulation 2847/93.

(3) Any logbook, declaration, report or other document kept on board or held in pursuance of Article 24 of the Council Regulation shall, in any proceedings for an offence under article 11(1), (2) or (3), or under any equivalent provision extending to any other part of the United Kingdom made for the purposes of implementing a specified Community provision or Community third country fishing measure, proceedings in respect of which were brought in Scotland by virtue of section 30(2A) of the Fisheries Act 1981[15], be received in evidence without being produced or sworn to by any witness and shall, unless the contrary is shown, be conclusive evidence as to the matters stated therein.

Revocation
21. The Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2006[16] is hereby revoked.

ROSS FINNIE
A member of the Scottish Executive

St Andrew's House, Edinburgh
28th February 2007

SCHEDULE 1Articles 2(1) and (4), 11(1) and 12(2)

COMMUNITY QUOTA MEASURES (MAXIMUM FINES ON SUMMARY CONVICTION)

Column 1	Column 2	Column 3
Provision of the Council Regulation	Subject matter	Maximum fine on summary conviction
1. Article 8.1	Prohibitions on retaining on board or landing catches from stocks for which total allowable catches or quotas are established and have been exhausted.	£50,000
2. Article 8.2	Circumstances required for fish to be retained on board and landed where Member State has no quota or quota is exhausted.	The statutory maximum
3. Article 8.5	Prohibition on landing catches which are unsorted and contain herring when catch limitations of a Member State are exhausted in ICES Sub areas IIa (EC waters), IV and Subdivisions IIIa and VIId.	£50,000
4. Article 10	Prohibition on fishing by Community vessels in certain Norwegian waters.	£50,000
5. Articles 11 and 12 as read with–
(a) paragraph 2 of Annex III	Prohibition on the landing or retention on board of herring caught in zone IIa (EC waters).	The statutory maximum
(b) paragraph 3 of Annex III and Appendix 1 to that Annex	Requirements as to mesh sizes in the Skagerrak and Kattegat.	The statutory maximum
(c) Paragraph 7.1 of Annex III, as read with paragraphs 7.3 and 7.4 of that Annex	Prohibition on fishing activity in certain waters off the West of Scotland until 31st December 2007.	£50,000
(d) paragraph 5 of Annex III	Prohibition on landing or retaining on board sandeels caught in certain waters.	£50,000
(e) paragraph 6 of Annex III	Prohibition on fishing (except with longlines) in the Rockall Haddock Box.	£50,000
(f) paragraph 9.3 of Annex III as read with paragraph 9.4 of Annex III; paragraphs 9.5; 9.6 as read with 9.10; 9.7 and 9.9 all of Annex III	Prohibition on the use of gillnets, entangling nets and trammel nets in certain waters where the charted depth is greater than 200 metres.	£50,000
(g) paragraph 13 of Annex III	Prohibition on bottom trawling and fishing with static gear in certain waters.	£50,000
(h) paragraph 19 of Annex III	Prohibitions relating to octopus (octopus vulgaris) weighing under 450 grammes (gutted) caught in certain waters.	The statutory maximum

SCHEDULE 2Articles 2(1) and (5), 11(2) and 12(2)

SPECIFIED COMMUNITY PROVISIONS (MAXIMUM FINES ON SUMMARY CONVICTION)

Column 1	Column 2	Column 3
Provision of the Council Regulation	Subject matter	Maximum fine on summary conviction
1. Article 2.1 subject to the derogation in Article 8.3 of the Council Regulation	Prohibition on retention on board of herring in certain circumstances.	The statutory maximum
Provision of the Council Regulation
2. Articles 11 and 12 as read with–
(a) paragraph 1.2.1 of Annex III	Prohibition on landing more than 10 tonnes of herring, mackerel, horse mackerel or combination thereof taken in the specified areas other than in a designated port.	£50,000
(b) paragraph 1.3.1 of Annex III	Requirements on the master to notify Fisheries Department 4 hours in advance of entering port, of the port of entry, time of arrival and quantities in kilograms live weight by species retained on board and the management area (in accordance with Annex I) where the catch was taken where landing more than 10 tonnes of herring, mackerel, horse mackerel or combination thereof.	£50,000
(c) paragraph 1.4.1 of Annex III	Prohibition on landing until authorised.	£50,000
(d) paragraph 1.5.1 of Annex III	Requirement to submit relevant page or pages of logbook upon arrival in port.	£50,000
	Requirement that quantities of fish retained on board (notified in accordance with paragraph 1.3.1(c) of Annex III) are equal to the quantities of fish recorded in completed logbook, subject to a permitted margin of tolerance of 8% .	£50,000
(e) paragraph 1.6 of Annex III	Requirement that when determining weight any deduction made for water must not exceed 2% .	£50,000
(f) paragraph 1.9 of Annex III	Requirement to submit documents to a British sea fishery officer.	£50,000
(g) paragraph 1.10.1 of Annex III	Requirements to issue weighing slips and to attach such slips to sales notes or take-over declarations when weighing facilities used are publicly operated.	£50,000
(h) paragraph 1.10.2 of Annex III	Requirements to keep and record information in a paginated weighing logbook where privately operated weighing facilities are used. Requirement to keep logbook and written declarations for 3 years.	£50,000

SCHEDULE 3Articles 2(1) and (6), 11(3) and 12(2)

COMMUNITY THIRD COUNTRY FISHING MEASURES (MAXIMUM FINES ON SUMMARY CONVICTION)

Column 1	Column 2	Column 3
Provision of the Council Regulation	Subject matter	Maximum fine on summary conviction
1. Article 14	Requirement in relation to vessels flying the flag of Norway or the Faroe Islands to fish within the geographical zone set out in Article 14(1).	£50,000
2. Article 16	Requirement in relation to vessels flying the flag of Norway or the Faroe Islands to fish within the quota limits contained in Annex I.	£50,000
3. Article 19.1	Requirement in relation to vessels flying the flag of Norway (other than those of less than 200 GT) or the Faroe Islands to hold licence and special fishing permit and observance of conditions thereof.	£50,000
4. Article 24.1	Requirement in relation to vessels flying the flag of Norway or the Faroe Islands to comply with the conservation and control measures and all other provisions governing fishing by Community vessels in the zones concerned, including those measures and provisions referred to in Article 24.	£50,000
5. Article 24.2	Requirement in relation to vessels flying the flag of Norway or the Faroe Islands to keep a logbook in compliance with Part I of Annex V.	£50,000
6. Article 24.3	Requirement in relation to vessels flying the flag of Norway (other than those fishing in ICES Division IIIa) or the Faroe Islands to transmit information in compliance with Annex VI.	The statutory maximum
7. Paragraph 7(a) of Annex VI	Requirement as regards vessels with catch on board to obtain authorisation before commencing fishing for blue whiting.	£50,000
8. Paragraph 7(c) of Annex VI	Requirements as regards vessels fishing for blue whiting leaving Community waters.	£50,000

EXPLANATORY NOTE

(This note is not part of the Order)

This Order, which forms part of the law of Scotland only, makes provision for the enforcement of certain enforceable Community restrictions and other obligations relating to sea fishing by Community vessels and third country vessels set out in Council Regulation (EC) No. 41/2007 ("the Council Regulation"). The Council Regulation fixes total allowable catches and the quotas of Member States for 2007 and lays down certain conditions under which they may be fished. It also authorises fishing by vessels of Norway and the Faroe Islands for specified descriptions of fish in certain specified areas within the fishery limits of Member States in 2007 and imposes requirements concerning fishing quotas and authorised zones, methods of fishing, the holding of licences and observance of licence conditions, the keeping of logbooks, the making of reports and similar matters.

The Order makes provision for the purposes of Article 9 of the Council Regulation (requirement for adequate sampling programme when landing unsorted catches) (article 3).

The Order makes provision for the Scottish Ministers to approve pelagic weighing systems for fisheries control purposes (article 4).

The Order provides that where over 10 tonnes of herring, mackerel or horse mackerel is landed in Scotland buyers or holders of the fish must weigh fresh fish using a pelagic weighing system which is approved by the Scottish Ministers or which has been passed as fit for trade use in accordance with the Weighing Equipment (Beltweighers) Regulations 2001. Frozen fish must be weighed in accordance with either paragraph 1.8.1 or 1.8.2 in Part A of Annex III to the Council Regulation. Failure to comply with any of those provisions is an offence (article 5).

Article 5 of the Order is subject to Article 6. Article 6 implements the derogation in paragraph 1.7 of Annex III to the Council Regulation. It allows fresh fish to be transported before being weighed from the port of landing to a place not more than 100 km from the port of landing provided the vehicle in which the fish is transported is accompanied by a British sea fishery officer or an approval has been granted in accordance with article 7 of the Order (article 6).

Article 7 sets out the conditions to which an approval is subject. Failure to comply with the conditions is an offence.

The Order makes provision in relation to vessels engaged in illegal, unreported and unregulated fishing in the North East Atlantic and the Northwest Atlantic. Offences are created in respect of contraventions or non compliance with certain provisions in Annex XVII to the Council Regulation (articles 8 and 9).

The Order makes it an offence to contravene the provision in Annex IA to the Council Regulation in relation to the quantity of dogfish retained on board (article 10).

The Order creates offences in respect of contraventions of the provisions of the Council Regulation referred to in column 1 (and briefly described in column 2) of Schedules 1 (Community quota measures), 2 (specified Community provisions) and 3 (Community third country fishing measures) to the Order (articles 11 and 12).

The Order provides penalties in relation to an offence under article 3(3) or 4(5) to (7), or 5(4) or 7(4) or 8(1) to (4) or 9(1) to (3) or 10 of the Order or any equivalent provision extending to any other part of the United Kingdom proceedings in respect of which were brought in Scotland by virtue of section 30(2A) of the Fisheries Act 1981 (c.29). The statutory maximum penalty specified in the Schedules is currently £5,000. The Order also makes provision for additional penalties such as forfeiture (article 12). The Order makes provision in relation to the recovery of fines imposed in respect of such offences or an offence under article 18 (obstruction of officers) (article 13).

The Order confers on British sea fishery officers powers of enforcement in relation to fishing boats and on land. These include power 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, 15 and 16). The Scottish Ministers are designated as the "competent authorities" for the purposes of paragraph 9.8 of Annex III to the Council Regulation. This gives powers to remove unattended gear at sea in certain circumstances (article 16(3)).

Provision is also made in relation to the liability of officers for anything done in the purported exercise of powers conferred by the Order (article 17). The Order creates offences and provides penalties in respect of the obstruction of a British sea fishery officer and makes provision in relation to offences committed by bodies corporate and partnerships and the admissibility of certain documents (articles 18, 19 and 20).

The Order revokes the Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2006 (article 21).

Notes:

[1] 1981 c.29 ("the 1981 Act"); 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 (Modification 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) of the 1981 Act for definitions of "enforceable Community restriction", "enforceable Community obligation" and "the Ministers". Section 30 of the 1981 Act has effect in relation to Scotland as modified by section 30(5) of that Act inserted by the Scotland Act (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820), Schedule 2, paragraph 68(5)(b).back

[2] O.J. No. L 15, 20.1.07, p.1 as corrected by Corrigendum, O.J. No. L18, 25.1.07, p.11.back

[3] O.J. No. L 191, 7.7.98, p.10 as amended by Council Regulation (EC) No. 2187/2005, O.J. No. L 349, 31.12.05, p.1.back

[4] Cmnd. 2586.back

[6] 1981 c.29; section 30(2A) was inserted by S.I. 1999/1820.back

[7] 1998 c.46.back

[8] 1995 c.21.back

[9] 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).back

[10] S.I. 2001/1208.back

[11] 1995 c.46.back

[12] 1980 c.43.back

[13] S.I. 1981/1675.back

[14] O.J. No. L 261, 20.10.93, p.1.back

[15] 1981 c.29; section 30(2A) was inserted by S.I. 1999/1820.back

[16] S.S.I. 2006/244.back

ISBN 978 0 11 071889 7

Prepared 7 March 2007

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