The Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures and Restriction on Days at Sea) (Scotland) Order 2008

Absence from port

9.—(1) A person in charge of a relevant fishing boat which–

(a) is absent from port and within the cod recovery zone in excess of the number of days permitted to it under this Part of this Order in contravention of paragraph 9.3 of Annex IIa; or

(b) without having a management period, enters the cod recovery zone carrying on board any regulated gear,

is guilty of an offence.

(2) Paragraph (1)(a) does not apply to–

(a) a person in charge of a relevant fishing boat in respect of which paragraph 21 of Annex IIa applies, provided that the person complies with the requirements of that paragraph; or

(b) a person in charge of a relevant fishing boat which is permitted by paragraph 22 of Annex IIa to transit the cod recovery zone provided that the person complies with the requirements of that paragraph.

(3) Paragraph (1)(b) does not apply to a person in charge of a relevant fishing boat which is permitted by paragraph 22 of Annex IIa to transit the cod recovery zone provided that the person complies with the requirements of that paragraph.

(4) In addition to the determined number of days, for each management period, there is added to, or substituted for as the case may be, the determined number of days, such further number of days (if any) as may be allocated to the boat by the Scottish Ministers.

(5) Where unused days have been transferred from a relevant fishing boat (“the donor”) to another relevant fishing boat (“the recipient”) the following applies, subject to any adjustment required by paragraph 15.1 of Annex IIa–

(a) the donor must have deducted from its allocation of days such number of days as have been transferred to the recipient;

(b) the recipient must have added to its allocation of days such number of days as have been transferred by the donor.

(6) Where unused days have been transferred from a relevant fishing boat (“the donor”) to a foreign fishing boat (“the recipient”), subject to any adjustment required by paragraph 16 of Annex IIa, the donor must have deducted from its allocation of days such number of days as have been transferred to the recipient.

(7) Where unused days have been transferred from a foreign fishing boat (“the donor”) to a relevant fishing boat (“the recipient”), subject to any adjustment required by paragraph 16 of Annex IIa the recipient must have added to its allocation of days such number of days as have been transferred by the donor.

(8) Where in the course of an absence from port during any management period within the cod recovery zone regulated gear is affixed to two or more fishing boats there will be deducted from the determined number of days for each such boat that is a relevant fishing boat in relation to that gear and that period a number of days equal to the number when it was absent from port.

(9) Where during any management period a relevant fishing boat is absent from port operating with regulated gear within the same grouping of fishing gear and present within the sole recovery zone there will be deducted from the determined number of days for that boat in relation to that period a number of days equal to the number when it was absent from port and present within that area.

(10) Subject to article 10, where during any management period a relevant fishing boat has–

(a) been absent from port carrying fishing gear in excess of the determined number of days or the days permitted to it by this article; or

(b) purported to transfer days in accordance with article 12 in excess of its unused days,

the Scottish Ministers may deduct a number equal to the number of days in that excess.

(11) In any proceedings for an offence under paragraph (1)(a) of this article, it is a defence for a person to show that the number of days of absence from port carrying any type of fishing gear comprising the offence was no greater than the number of days of absence carrying that gear purportedly but not validly transferred to that person under article 12 and that person did not know and had no reasonable cause to suspect that the donor was not entitled to transfer the days.

(12) In this article “determined number of days” means the number of days during a management period as determined by the Scottish Ministers in accordance with article 8(1) and adjusted as necessary in terms of paragraphs 18.2 to 18.4 of Annex IIa.