S.I. No. 49/1988:

SEA FISHERIES (CONSERVATION AND RATIONAL EXPLOITATION) ORDER, 1988.

SEA FISHERIES (CONSERVATION AND RATIONAL EXPLOITATION) ORDER, 1988.

I, BRENDAN DALY T.D., Minister for the Marine, 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 Tourism, Fisheries and Forestry (Alteration of Name of Department and Title of Minister) Order, 1987 ( S.I. No. 82 of 1987 )), hereby order as follows:

1. (1) This Order may be cited as the Sea Fisheries (Conservation and Rational exploitation) Order, 1988.

(2) This Order shall come into operation on the 1st day of April 1988.

2. In this Order "the Council Regulation" means Council Regulation (EEC) No. 3094/86 of 7 October, 1986^(a) as amended by Council Regulation (EEC) No. 4026/86 of 18 December, 1986^(b) and by any future regulation of the Council made after the making of this Order which amends the said Council Regulation (EEC) 3094/86.

^(a)O.J. L 288/1 of 11.10.1986.

^(b)O.J. L 376/1 of 31.12.1986.

3. (1) The provisions of the Council Regulation (being measures of conservation of fish stocks and rational exploitation of fisheries) 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 Council Regulation within those limits (or, as the case may be, within the State) after the commencement of this Order, shall be an infringement of this Order.

(2) The provisions of Commission Regulation (EEC) No. 3440/84 (as amended by Commission Regulation (EEC) No. 955/87 of 1 April, 1987^(c) of 5 December, 1984^(d) and any future regulation of the Commission made after the making of this order which amends or replaces the said Commission Regulation (EEC) No. 3440/84 being measures of conservation of fish stocks and rational exploitation of fisheries, insofar as they relate to the State (including the exclusive fishery limits of the State) are hereby prescribed and adopted for the purpose of the Council Regulation, and, accordingly, any infringement, after the commencement of this Order, of the Commission Regulation within those limits (or, as the case may be, within the State) shall be an infringement of this Order.

^(c)O.J. L 90/29 of 2.4.1987.

^(d)O.J. L 318/23 of 7.12.1984.

4. (1) In a prosecution for an infringement of the Council Regulation in respect of which provision is made in the Council Regulation for an exclusion, qualification, or exception to, the relevant obligation imposed by the Council 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.

(2) In a prosecution for an infringement of Article 4 of the Council Regulation, it shall be a defence for the person charged to prove that the fishing net in respect of the use of which the prosecution is brought was not, at the relevant time, being used for fishing for any species of fish which was not a species for which, at that time, a minimum net size was specified in the Council Regulation, or, in accordance with article 15 of the Council Regulation.

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

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

(b) at the time when the fish were so found the sea-fishing boat concerned was within both the exclusive fishery limits of the State and 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 catch so found was taken within such limits and 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 VI and Sub-Area VII.

(b) the following Divisions of Sub-area V1, namely, Division V1a) and Division V1b), and

(c) the following Divisions of Sub-area V11, namely, Division V11a), Division V11b), Division V11c), Division V11g), Division V11h), Division V11j), and Division V11k).

(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^(e)

^(e)O.J. C. 347/14 of 31/12/1985.

"Sub-area V1", "Sub-area V11", "Division V1a)", "Division V1b)", "Division V11a)", "Division V11b)", "Division V11c)", "Division V11g)", "Division V11h)", "Division V11j)", and "Division V11k)", mean, respectively, the parts of the sea described in the Annex to the Communication and therein referred to as Sub-area V1, Sub-area V11, Division V1a), Division V1b), Division V11a), Division V11b), Division V11c), Division V11g), Division V11h), Division V11j), and Division V11k).

6. (1) 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^(f) and any future Regulation of the Commission which amends or replaces the said Commission Regulation (EEC) 2108/84.

^(f)O.J.L. 194/22 of 24.7.1984.

(2) Where in proceedings in which a contravention of this Order is alleged, a sea fisheries protection officer gives evidence that at any particular time he was in possession of or was using a gauge marked 'EEC gauge' it shall be presumed until the contrary is proved that the said gauge was a gauge which at that particular time complied with the provisions of Article 1 of the said Commission Regulation (EEC) No. 2108/84 of 23 July, 1984.

(3) The percentage of target species and protected species when fishing with small mesh nets shall, for the purposes of this Order, be measured in accordance with the provisions of Commission Regulation (EEC) No. 954/87 of 1 April, 1987^(g) and any future regulation of the Commission which amends or replaces the said Commission Regulation (EEC) No. 954/87.

^(g)O.J.L. 90/27 of 2.4.1987.

7. (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--

(i) salmon,

(ii) 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) together with the Sea Fishing Boats (orders to stop) Regulations, 1934 and 1940, 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) any reference in the said section 231 to sea-fish shall be construed as including a reference to salmon,

(ii) the reference in paragraph (d) of subsection (1) of the said section 231 to under-sized sea-fish shall be construed as including a reference both to sea-fish of any other description and to salmon,

(iii) the reference in paragraph (e) of the said subsection (1) 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,

(iv) 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,

(v) 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,

(vi) 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

(vii) 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).

8. The Sea Fisheries (Conservation and Rational Exploitation) Order, 1987 ( S.I. No. 2 of 1987 ), and the Sea Fisheries (Conservation and Rational Exploitation) (Amendment) Order, 1987 ( S.I. No. 50 of 1987 ), are hereby revoked.

GIVEN under my Official Seal, this 22nd of March, 1988.

BRENDAN DALY,

Minister for the Marine.

EXPLANATORY NOTE.

The effect of this Order is to replace the Sea Fisheries (Conservation and Rational Exploitation) Order, 1987 ( S.I. No. 2 of 1987 ) and the Sea Fisheries (Conservation and Rational Exploitation) (Amendment) Order, 1987 ( S.I. No. 50 of 1987 ) which prescribe and adopt E.E.C. Regulations 2108/84, 3421/84, 3440/84, 3094/86 and 4026/86 laying down certain technical measures for the conservation of fisheries resources.

This Order also implements Commission Regulations (E.E.C.) Nos. 954/87 (which replaces Commission Regulation (EEC) No. 3421/84) and 955/87 (which amends Commission Regulation (EEC) No. 3340/84) laying down rules on sampling of bye-catches and attachments of devices to nets etc. respectively, in so far as these Regulations relate to the State.

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