Scottish Statutory Instrument 2001 No. 448
The Sea Fishing (Enforcement of Community Satellite
Monitoring Measures) (Scotland) Order 2000 Amendment Regulations 2001
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SCOTTISH STATUTORY INSTRUMENTS
2001 No. 448
SEA FISHERIES
The Sea Fishing (Enforcement of Community Satellite Monitoring
Measures) (Scotland) Order 2000 Amendment Regulations 2001
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Made |
28th November 2001 |
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Laid before the Scottish Parliament |
3rd December 2001 |
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Coming into force |
1st January 2002 |
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The Scottish Ministers, in exercise of the powers conferred by section
2(2) of the European Communities Act 1972[1] and of all
other powers enabling them in that behalf, hereby make the following Regulations:
Citation and commencement
1. These Regulations may be cited as the Sea Fishing
(Enforcement of Community Satellite Monitoring Measures) (Scotland) Order
2000 Amendment Regulations 2001 and shall come into force on 1st January
2002.
Interpretation
2. - (1) In these Regulations "the Order"
means the Sea Fishing (Enforcement of Community Satellite Monitoring Measures)
(Scotland) Order 2000[2].
(2) Expressions used in provisions inserted by
these Regulations into the Order shall be interpreted in the same way as
if they had been so inserted by an order made under section 30(2) of the
Fisheries Act 1981[3].
Amendment of the Order
3. The Order is amended in accordance with the following
regulations.
4. In article 2(1) (interpretation) in the definition
of "polled" omit "(4) or".
5. In article 3 (satellite tracking of Scottish and
relevant British fishing boats)-
(a) in paragraph (3), for sub-paragraph (b) there is substituted-
" (b) subject to paragraphs (4) and (6) below, be maintained fully
operational,";
(b) for paragraphs (4) and (5) there are substituted the following paragraphs:-
" (4) Without limiting the generality of paragraph
(3)(b) above, a satellite tracking device shall not be regarded as fully
operational for the purposes of that paragraph during any time when it
is failing to operate in accordance with paragraph (5) below.
(5) A satellite tracking device installed on a
fishing boat to which this article applies shall transmit the required
information, in the format prescribed by Annex II to Regulation 1489/97,
to a Fisheries Monitoring Centre-
(6) Neither of the following circumstances shall
be treated as giving rise to a breach of the requirement in paragraph (3)(b)
above-
(a) where the device is switched off under the conditions permitted
by Annex I to Regulation 1489/97 (stay in port of more than 48 hours, provided
the next report is from the same position as the previous one);
(b) where the device is subject to a technical failure or non-function
within the meaning of Article 6.2 of Regulation 1489/97 during a time when
the fishing boat is either in port or in the course of a fishing trip authorised
by that Article.
(7) Throughout any time when-
(a) a Scottish fishing boat or a relevant British fishing boat to
which this article applies is not in port; and
(b) the satellite tracking device installed on the boat is failing
for any reason to operate in accordance with paragraph (5) above,
the required information shall be communicated to the Fisheries Monitoring
Centre of the United Kingdom by one of the means specified in 6.1 of Regulation
1489/97 Article at least every two hours.
(8) Paragraph (7) above is without prejudice to
Article 6.1 of Regulation 1489/97 (requirement to communicate information
to flag state and, if appropriate, coastal state monitoring centres by
other means at least every 24 hours).".
6. - (1) In article 5 (offences)-
(2) The revocation by regulation 6(1) of these Regulations
of article 5(2) of the Order shall not affect its application for the purposes
of proceedings (whenever occurring) in relation to an offence alleged to
have been committed before 1st January 2002.
7. In article 6(1) (penalties) for "or (4)" there
is substituted "or (7)".
8. In article 7(1)(a) (recovery of fines) for "sub-paragraph
(a)" there is substituted "sub-paragraph (b)".
9. In article 8 (powers of British sea-fishery officers
in relation to fishing boats)-
" (5) Where it appears to a British sea-fishery
officer that the satellite tracking device on a Scottish fishing boat or
a relevant British fishing boat failed, at a time when the boat was not
in port, to operate in accordance with article 3(5) above that officer
may, subject to paragraph (7) below, at any time when the boat is in port
serve on the master or the owner a notice.
(6) The notice referred to in paragraph (5) above
is a notice which-
(a) requires the boat to be detained in port from the time of service
of the notice until the expiry of the specified monitoring period; and
(b) requires that during the specified monitoring period the device
shall be set (as nearly as its condition allows) so as to transmit the
required information to the Fisheries Monitoring Centre of the United Kingdom-
(i) in the case of a device designed to be capable of being polled,
at least every two hours; and
(ii) in the case of a device not so designed, at least every hour.
(7) A notice under paragraph (5) above shall not
be served later than 30 days after the day on which it appears to the British
sea-fishery officer that the satellite tracking device last failed to operate
in accordance with article 3(5) above.
(8) In this article-
(a) in paragraphs (5) and (7) above the reference to article 3(5)
above includes a provision to the same effect made by an order which applies
to England and Wales or to Northern Ireland;
(b) in paragraph (6) above "the specified monitoring period" means
a period of 24 hours which is specified in the notice (which period shall
not begin later than 9.00 a.m. on the weekday next following the day on
which the notice is served);
(c) "weekday" means a day other than a Saturday, Sunday or public
holiday.".
ROSS FINNIE
A member of the Scottish Executive
Pentland House, Edinburgh
28th November 2001
EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations amend the Sea Fishing (Enforcement of Community
Satellite Monitoring Measures) (Scotland) Order 2000 ("the Order"), which
contains provisions for the enforcement of European Community legislation
requiring satellite monitoring of the position of fishing boats above a
certain size.
The amendments made by these Regulations make two principal changes
to the Order. Firstly regulation 5 amends article 3 of the Order, which
creates obligations relating to the installation and operation of satellite
tracking devices, by clarifying the requirement in article 3(3)(b) to maintain
the satellite tracking device fully operational. In particular the amendments
make it clear that no breach of that requirement occurs either when the
satellite tracking device is switched off in port under conditions permitted
by the relevant EC legislation or if there is a technical fault or non-function
when the boat is in port or when the temporary period for which the relevant
EC legislation allows fishing with a defective device has not yet expired.
Regulation 5 imposes an additional requirement that, at any time when a
British fishing boat is at sea, if the tracking device on board is not
working as required by article 3 of the Order the required positional information
must be provided every two hours to the United Kingdom's Fisheries Monitoring
Centre by telex, fax, telephone or radio.
Secondly regulation 9, which amends article 8 of the Order, confers
an additional enforcement power on a British sea-fishery officer in a case
where there has been a failure of operation of the satellite tracking device
on board a Scottish or relevant British fishing vessel. The officer may
serve a notice requiring the boat to remain in port until the expiry of
a 24 hour monitoring period, during which the satellite tracking device
must be set so as to broadcast the required position information every
two hours (every hour in the case of a device which is not designed to
be capable of being polled by the Monitoring Centre).
Other amendments made by the Regulations are consequential. They
include the revocation by regulation 6 of a ground of defence to certain
criminal proceedings which has become obsolete following the changes made
to article 3 of the Order, subject to a saving.
Notes:
[1] 1972 c.68. Section 2(2) was amended by the
Scotland Act 1998 (c.46), Schedule 8, paragraph 15(3). The function conferred
upon a Minister of the Crown under section 2(2) of the European Communities
Act 1972, insofar as within devolved competence, was transferred to the
Scottish Ministers by virtue of section 53 of the Scotland Act 1998.back
[2] S.S.I. 2000/20.back
[3] 1981 c.29; 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 1988 (Modification
of Functions) Order 1999 (S.I. 1999/1756), articles 3, 5 and 6. Section
30 has effect in relation to Scotland as modified by section 30(5), inserted
by the Scotland Act (Consequential Modifications) (No. 2) Order 1999 (S.I.
1999/1820), Schedule 2, paragraph 68(5)(b).back
ISBN 0 11059924 1
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