S.I. No. 409 of 2001

SEA FISHERIES (CONSERVATION AND RATIONAL EXPLOITATION OF HAKE) ORDER, 2001

I, Frank Fahey, Minister for the Marine and Natural Resources, in exercise of the powers conferred on me by section 223A (inserted by section 9 of the Fisheries (Amendment) Act, 1978 ( No. 18 of 1978 ) and amended by section 4 of the Fisheries (Amendment) Act, 1983 ( No. 27 of 1983 )) of the Fisheries (Consolidation) Act, 1959 (No. 14 of 1959) and the Fisheries (Transfer of Departmental Administration and Ministerial Functions) Order, 1977 ( S.I. No. 30 of 1977 ) (as adapted by the Marine (Alteration of Name of Department and Title of Minister) Order, 1997 ( S.I. No. 301 of 1997 )), for the purpose of giving effect to Commission Regulation (EC) No. 1162/2001 of 14 June, 2001⁽¹⁾ hereby order as follows:

1.       This Order may be cited as the Sea Fisheries (Conservation and Rational Exploitation of Hake) Order, 2001 and shall come into operation on the 6th day of September, 2001.

2.       In this Order -

“the Commission Regulation” means Commission Regulation (EC) No. 1162/2001 of 14 June, 2001 and any future regulation of the Commission made after the making of this Order which amends, extends, replaces or consolidates (with or without modifications) the Commission Regulation (as defined herein);

“hake” means Merluccius merluccius.

3.       The provisions of the Commission Regulation (being measures for the recovery of stocks of hake) in so far as they relate to the State, including the exclusive fishery limits of the State, are hereby prescribed and adopted and accordingly any infringement of the Commission Regulation within these limits (or, as the case may be, within the State) after the commencement of this Order, shall be an infringement of this Order.

4.       In a prosecution for an infringement of the Commission Regulation in respect of which provision is made in the Commission Regulation for an exclusion, qualification, or exception to, the relevant obligation imposed by the Commission Regulation which would be capable of constituting a defence to the charge, it shall be for the person charged to establish any such defence and it shall be presumed, until the contrary is proved, that there is no such defence in the particular case.

5.    1.          The master of an Irish sea-fishing boat or his representative, which intends to fish or which has completed fishing under conditions laid down in Article 5 of the Regulation, shall communicate, by telex, fax, telephone message, or by radio station via a radio station approved under community legislation for the reception of such reports, details of entry into and exit from the areas defined in Article 5 of the Commission Regulation, to the Fisheries Monitoring Centre, Cork. See the First Schedule to this Order for contact details. The communication shall be made simultaneously by the master or representative of the vessel concerned to the coastal Member State or Member States responsible for monitoring activity in waters under the sovereignty or jurisdiction of that Member State or those Member States.

2.       The communication referred to in paragraph 1 shall include:

-        the name of the vessel,

-        the code (entry ‘in’, exit ‘out’),

-        the date, time and geographical location,

-        the name of the master.

The master shall also record this information and the time of transmission of such a communication in the vessels logbook.

3.       A vessel equipped with functioning real-time automatic monitoring system recognised under Community legislation shall be exempt from the conditions laid down in paragraph 5.1.

6.       The master, or other person for the time being in charge of a Community fishing vessel, or their representative or agent, who wishes on any occasion to land hake in excess of 250 kg in the State shall inform, at least four hours in advance of landing, a Sea Fisheries Protection Officer at the appropriate port listed in the Second Schedule to this Order of:

-        the landing location,

-        the estimated time of arrival at that location,

-        he quantities of hake retained on board, and

-        the quantities of hake to be landed.

7.       The master, or person for the time being in charge of a Community fishing vessel, shall not land hake in excess of 500 kg in the State unless it is landed at a port listed in the Third Schedule to this Order or such other ports specified to the master of the vessel by a Sea Fisheries Protection Officer.

8.    1.          Where the master, or other person for the time being in charge of a vessel, or their representative or agent, land hake which is not offered for sale for the first time by sale at auction, as provided for by Article 9(2) of Regulation (EEC) No. 2847/93⁽²⁾ , the master or his representative or agent shall have the hake weighed at the port of landing and shall immediately thereafter notify the auction centre, at which the fish will be offered for sale, or any other body designated by the Sea Fisheries Protection Officer, of the weight of hake landed. The weight of hake landed and the destination shall also be forwarded to the Sea Fisheries Protection Officer.

2.       A Sea Fisheries Protection Officer may require that any quantity of hake first landed in the State is weighed before being transported from the port of landing.

9.      (1)      Where, in proceedings in which a contravention of this Order is alleged, it is proved that --

(a)      hake were found on board a sea-fishing boat, and

(b)      at the time when the hake were so found the sea-fishing boat concerned was within any of the ICES Sub-areas or Divisions specified in paragraph (2) of this Article,

it shall be presumed until the contrary is proved that all of the hake so found was taken within such Sub-area or Division, as may be appropriate.

(2)      The ICES Sub-areas and Divisions referred to in paragraph (1) of this Article are --

(a)      Sub-area V;

(b)      Sub-area VI;

(c)      The following Divisions of Sub-area VII, namely Division VIIb, Division VIIc, Division VIIf, Division VIIg, Division VIIh, Division VIIj, and Division VIIk;

(d)      The following Divisions of Sub-area VIII, namely Division VIIIa, Division VIIIb, Division VIIId, Division VIIIe.

(3)     In any proceedings referred to in paragraph (1) of the Article prima facie evidence of the Communication may be given by the production of a copy of the Official Journal purporting to contain the Communication.

(4) In this Article--

“the Communication” means the communication from the Commission of the European Communities on the description of the ICES Sub-areas and Divisions used for the purposes of fisheries statistics and regulations in the North-East Atlantic⁽³⁾ .

“Sub-area V”, Sub-area VI”, “Division VIIb”, “Division VIIc”, “Division VIIf”, “Division VIIg”, “Division VIIh”, “Division VIIj”, “Division VIIk”, “Division VIIIa”, “Division VIIIb”, “Division VIIId”, “Division VIIIe”, mean, respectively, the parts of the sea described in the Annex to the Communication and therein referred to as Sub-area V, Sub-area VI, Division VIIb, Division VIIc, Division VIIf, Division VIIg, Division VIIh, Division VIIj, Division VIIk, Division VIIIa, Division VIIIb, Division VIIId, Division VIIIe.

10.     The mesh size of nets shall be measured for the purposes of this Order in accordance with the provisions of Commission Regulation (EEC) No. 2108/84 of 23 July, 1984⁽⁴⁾ as amended by Commission Regulation (EC) No. 2550/97 of 16 December, 1997 ⁽⁵⁾ and any future Regulation of the Commission which amends, extends, replaces or consolidates the said Commission Regulation (EEC) 2108/84.

11.     (1) For the purpose of enabling this Order to have full effect all of the powers conferred on a sea fisheries protection officer by the Principal Act are hereby extended to such extent as is appropriate for the enforcement of this Order.

(2) Without prejudice to the generality of paragraph (1) of this Article the following provisions shall apply--

(a)      the powers referred to in paragraph (1) of this Article and exercisable as regards sea-fish (whether exercisable only as regards sea-fish of a particular description or otherwise exercisable) or as regards sea-fishing boats are hereby extended so as to be exercisable by a sea fisheries protection officer in relation to any boat other than a sea-fishing boat;

(b)      the following provisions of the Principal Act, namely, section 231, section 233 (other than subsection (4)), section 233A (inserted by section 12 of the Act of 1978), section 234 (inserted by section 13 of the Act of 1978), section 235 (inserted by section 14 of the Act of 1978), section 236, and subsection (2) of section 309 (inserted by section 15(2) of the Act of 1978) shall, for the purposes referred to in paragraph (1) of this Article, be construed and have effect subject to the modifications specified in sub paragraph (c) of this paragraph;

(c)      the modifications referred to in sub paragraph (b) of this paragraph are--

(i)       the reference in paragraph (e) of subsection (1) of the said section 231 to an offence under this Chapter shall be construed as including an offence under section 223A of the Principal Act which is an infringement of this Order,

(ii)      the reference in paragraph (f) of the said subsection (1) to forfeiture under this Chapter shall be construed as including a reference to forfeiture under section 2(1) of the Act of 1978 as a statutory consequence of conviction of an offence under the said section 223A which is such an infringement,

(iii)     any reference in the said sections 233, 233A, 234, 235 or 236 or in subsection (2) of the said section 309, or in the said Regulations, either to a sea-fishing boat or to a boat, shall be construed as a reference to a boat of any description,

(iv)     any reference in the said sections 231, 233, 233A, 234, 235 or in subsection (2) of the said section 309 to any of the said sections 231, 233, 233A, 234 or 235 or to the said subsection (2) or to any subsection or paragraph of any of the last-mentioned sections or to any paragraph of the said subsection (2) shall, where appropriate, be, construed as a reference to that section, subsection or paragraph, as may be appropriate, as affected by this Order, and

(v)      any other necessary modifications.

(3)   In any detention or other order, certificate, authorisation or other instrument made or given, whether wholly or partly by virtue of this Article, any reference to section 231, 233, 233A, 234, 235 or 236 of the Principal Act shall be construed as a reference or, as may be appropriate, as including a reference to the section as affected by this order.

(4) In this Article “the Act of 1978” means the Fisheries (Amendment) Act, 1978 (No. 18 of 1978) .

FIRST SCHEDULE

Contact Details For Entry And Exit Reports

Fisheries Monitoring Centre

Naval Base

Haulbowline

Co. Cork

Tel:     021 4378752

Fax:    021 4378096

Telex: + 75924

SECOND SCHEDULE

Contact Details For Reporting of Hake in Excess of 250 kg

Castletownbere

Castletownbere Harbour Offices

Castletownbere Harbour

Co. Cork.

Tel: 027 70439       Fax: 027 70094

Cork

Department of the Marine and Natural Resources

Government Buildings

Sullivan's Quay

Cork

Tel: 021 4319814      Fax: 021 4313418

Dingle

Sea Fisheries Control

Dingle Harbour Offices

Dingle

Co. Kerry

Tel: 066 9151152      Fax: 066 9151489

Dunmore East

Department of the Marine and Natural Resources

Dunmore East Harbour Co. Waterford

Tel: 051 383135       Fax: 051 383045

Howth

Department of the Marine and Natural Resources

Auction Hall

West Pier

Howth

Co. Dublin

Tel: 01 8321910       Fax: 01 8321911

Killybegs

Department of the Marine and Natural Resources

Killybegs Harbour Office

Killybegs

Co. Donegal

Tel: 073 31264        Fax: 073 31819

Ros a Mhil (Rossaveal)

Department of the Marine and Natural Resources

Ross House

Merchant's Quay

Galway

Tel: 091 568313        Fax: 091 568316

THIRD SCHEDULE

Designated Ports At Which More Than 500 Kg Of Hake Are Permitted To Be Landed.

EXPLANATORY NOTE

This Order makes any infringement of Council Regulation (EC) No. 1162/2001 of 14 June, 2001, which prescribes certain technical measures for the recovery of the stock of hake, an offence in so far as the Regulation relates to the State.

Provision has been made in this Order for the automatic enforcement of future Commission Regulations amending or replacing any of the Regulations prescribed and adopted in this Order.

Published by the Stationery Office, Dublin.

(1) O.J.L 159/4 of 15.6.01.

(2) O.J.L. 261/1 of 20.10.93.

(3) O.J.C. 347/14 of 31.12.85.

(4) O.J.L. 194/22 of 24.7.84.

(5) O.J.L. 349/1 of 19.12.97.