Fisheries (Scallop) Amendment Rules 2003

Fisheries (Scallop) Amendment Rules 2003

I make the following rules under the Living Marine Resources Management Act 1995 .

14 May 2003

Bryan Green

Minister for Primary Industries, Water and Environment

1.   Short title

These rules may be cited as the Fisheries (Scallop) Amendment Rules 2003 .

2.   Commencement

These rules take effect on 1 June 2003.

3.   Principal Rules

In these rules, the Fisheries (Scallop) Rules 2000 are referred to as the Principal Rules.

4.    Rule 3 amended (Interpretation)

Rule 3(1) of the Principal Rules is amended as follows:

(a) by inserting the following definition after the definition of Bass Strait scallop fisher :

Bass Strait scallop trip means a fishing trip by a Bass Strait scallop fisher, who has complied with the requirements of his or her Commonwealth authority, to the Bass Strait Central Zone Scallop Fishery;

(b) by omitting the definition of deactivate and substituting the following definition:

deactivate, in relation to a fishing licence, means to make the licence subject to a condition that prohibits the use of the licence –

(a) for a period specified in the condition; or

(b) from a time and date specified in the condition.

(c) by inserting the following definition after the definition of D'Entrecasteaux Channel :

fishing period means fishing period one, fishing period 2 or fishing period 3;

(d) by omitting " Fisheries (Penalty) Regulations 1996 " from the definition of Penalty Regulations and substituting " Fisheries Penalties Regulations 2001 ";

(e) by omitting the definition of scallop dredge and substituting the following definition:

scallop dredge has the meaning referred to in rule 7A ;

(f) by omitting " Fisheries (Scalefish) Rules 1998 " from paragraph (d) of the definition of shark nursery waters and substituting " Fisheries (Scalefish) Rules 2001 ;";

(g) by inserting the following definition after the definition of shark nursery waters :

tipper means the part of a scallop dredge that is used to support and tilt the apparatus referred to in rule 7A(1) ;

5.    Rule 7A inserted

After rule 7 of the Principal Rules , the following rule is inserted in Part 1:

7A.   Scallop dredge

(1)  A scallop dredge is apparatus that is –

(a) designed for use, or capable of being used, for or in connection with the taking of scallops; and

(b) capable of being towed along the seabed by a fishing vessel.

(2)  A scallop dredge includes the tipper or cradle used to support and tilt the dredge when in use on a vessel but does not include any cable, chain or other attachment to the fishing vessel.

(3)  For the purposes of these rules, a scallop dredge is taken to be on board a fishing vessel when the dredge is not in or touching the water.

6.    Rule 8 substituted

Rule 8 of the Principal Rules is rescinded and the following rule is substituted:

8.   Taking and possessing scallop

(1)  A person must not, in State waters, take or have possession of any scallop during an open season unless the person is the holder of –

(a) a fishing licence (scallop); or

(b) a fishing licence (recreational scallop dredge); or

(c) a fishing licence (recreational scallop dive).

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(2)  The Minister, by public notice, is to specify for each fishing period –

(a) the maximum weight of scallops that may be taken for each scallop unit specified on a fishing licence (scallop); and

(b) the maximum weight of scallops that the holder of a fishing licence (scallop) may take, or have possession of on a fishing vessel, during a fishing trip.

(3)  The holder of a fishing licence (scallop) must not, in a fishing period –

(a) take more than the amount specified for the fishing period by the Minister under subrule (2)(a) for each scallop unit specified on the licence; or

(b) during a fishing trip, take, or have possession of on a fishing vessel, more than the amount specified for the fishing period by the Minister under subrule (2)(b) .

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(4)  The holder of a fishing licence (scallop) must not, during fishing period one, fishing period 2 and fishing period 3 in aggregate, take more than 400 kilograms of whole scallops for each scallop unit specified on the licence.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(5)  The Minister, by order, may increase the weight of whole scallops that may be taken under subrule (4) if the Minister is satisfied that –

(a) there is evidence that scallops will die before they have another spawning; and

(b) there is no increased risk of illegal fishing.

(6)  The holder of a recreational scallop licence must not, in State waters, take or have possession of more than 100 scallops in any one day.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(7)  The holder of a recreational scallop licence must not have possession of more than 200 scallops without a scallop sales receipt for those scallops in excess of 200.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

7.    Rule 9 amended (Taking and possessing scallop in closed season)

Rule 9(3) of the Principal Rules is amended by omitting paragraph (a) and substituting the following paragraph:

(a) the scallops were taken, bought or sold, or in possession of that person, during an open season or imported into the State; or

8.    Rule 13 amended (Scallop fishing prohibited areas)

Rule 13(3) of the Principal Rules is amended by omitting paragraph (a) and substituting the following paragraph:

(a) must not enter the State waters specified in subrule (1) on a vessel with a scallop dredge unless the dredge is on board the vessel; and

9.    Rule 14 amended (Possession of scallop dredge)

Rule 14 of the Principal Rules is amended by inserting after subrule (2) the following subrules:

(3)  The holder of a fishing licence (scallop) must not have possession of a scallop dredge in State waters while the fishing licence (scallop) is deactivated.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(4)  Despite subrules (1) and (3) , the Secretary may authorise a person to have possession of the tipper of a scallop dredge on board a fishing vessel while the fishing vessel is in State waters.

10.    Rule 15 amended (Possession of scallop dredge in closed season)

Rule 15 of the Principal Rules is amended as follows:

(a) by inserting in subrule (2) "board" after "dredge on";

(b) by omitting from subrule (3) "any fishing trip that" and substituting "a Bass Strait scallop trip when";

(c) by inserting the following subrule after subrule (4) :

(5)  Despite subrule (1) , the Secretary may authorise a person to have the tipper of a scallop dredge on board a fishing vessel while the fishing vessel is in State waters during a closed season.

11.    Rule 16 amended (Scallop dredges in closed areas)

Rule 16 of the Principal Rules is amended by inserting after subrule (2) the following subrule:

(3)  Despite subrule (1) , the Secretary may authorise a person to have possession of the tipper of a scallop dredge on board a fishing vessel while the fishing vessel is in a closed area (class 1).

12.    Rule 18 amended (Authority of licence)

Rule 18 of the Principal Rules is amended as follows:

(a) by omitting paragraph (a) ;

(b) by omitting from paragraph (b) "500 kg" and substituting "400 kilograms";

(c) by omitting from paragraph (b) "periods 2 and 3" and substituting "fishing period one, fishing period 2 and fishing period 3 in aggregate".

13.    Rule 22 amended (Restrictions on leasing licence)

Rule 22(2) of the Principal Rules is amended by omitting "endorsed with a condition that deactivates the licence" and substituting "deactivated".

14.    Rule 23 amended (Transfer of units)

Rule 23 of the Principal Rules is amended as follows:

(a) by omitting from subrule (1) "on a permanent basis or on a temporary basis";

(b) by inserting the following subrule after subrule (1) :

(1A)  The transfer may, in the Minister's discretion, be on a permanent or temporary basis.

(c) by omitting subrule (5) and substituting the following subrules:

(5)  The Minister is not to transfer on a temporary basis a scallop unit that has been wholly or partially caught.

(6)  The Minister is not to transfer a scallop unit on a temporary basis unless the transferor's fishing licence (scallop) is deactivated for the period of the transfer.

15.    Rule 24 amended (Minimum and maximum holdings)

Rule 24(4) of the Principal Rules is amended by omitting "endorsed with a condition deactivating the licence" and substituting "deactivated".

16.    Rule 25 amended (Reporting service)

Rule 25 of the Principal Rules is amended by omitting "the service that may require reports under this Part" and substituting "a reporting service that may receive reports under these rules".

17.    Rule 25A inserted

After rule 25 of the Principal Rules , the following rule is inserted in Division 1:

25A.   Report requirements

The Secretary may require a report made under this Division –

(a) to be made in a specific way; and

(b) to contain specific details and information.

18.    Rule 39 substituted

Rule 39 of the Principal Rules is rescinded and the following rule is substituted:

39.   Scallop catch record

The holder of a fishing licence (scallop) must complete the scallop catch record section of the scallop quota docket on each day during which fishing occurs.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

19.    Rule 43 amended (Entering closed area)

Rule 43 of the Principal Rules is amended as follows:

(a) by inserting the following subrule after subrule (1) :

(1A)  A Bass Strait scallop fisher undertaking a Bass Strait scallop trip must ensure that the fishing vessel does not enter a closed area (class 1).

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

(b) by omitting subrule (2) and substituting the following subrules:

(2)  It is a defence in any proceedings for an offence under subrules (1) or (1A) for the supervisor of a fishing licence (scallop) or the Bass Strait scallop fisher to prove that the safety of the vessel or crew was at risk.

(3)  Subrule (1) does not apply to the supervisor of a fishing licence (scallop) while the fishing licence (scallop) has been deactivated.

20.    Rule 50 amended (Overrun provisions)

Rule 50 of the Principal Rules is amended as follows:

(a) by omitting from subrule (1) " rule 8(2) " and substituting " rule 8(4) ";

(b) by omitting from subrule (2) "in rule 8(3) and rule 8(4)(a) " and substituting "under rule 8(2)(a) ";

(c) by omitting from subrule (2) "in" third occurring and substituting "under";

(d) by omitting from subrule (3) " rule 8(4)(b) " and substituting " rule 8(2)(b) ";

(e) by omitting from subrule (3) " rule 8(4)(a) " and substituting " rule 8(2)(a) ";

(f) by omitting from subrule (3)(a) "in Schedule 2 " and substituting "by the Minister under rule 8(2)(b) ";

(g) by omitting from subrule (3)(b) "in Schedule 2 " and substituting "by the Minister under rule 8(2)(b) ".

21.    Schedule 2 rescinded

Schedule 2 to the Principal Rules is rescinded.

22.   Substitutions

Each of the provisions of the Principal Rules specified in Column 1 of Schedule 1 is amended by omitting " Fisheries (Scalefish) Rules 1998 " on the number of occurrences specified in Column 2 of that Schedule and substituting " Fisheries (Scalefish) Rules 2001 ".

SCHEDULE 1 - Substitutions

Rule 22

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 21 May 2003

These rules are administered in the Department of Primary Industries, Water and Environment.

EXPLANATORY NOTE

(This note is not part of the rule)

These rules amend the Fisheries (Scallop) Rules 2000 by effecting minor statute law revision and by amending the rules relating to –

(a) the taking and possessing of scallops; and

(b) the use and possession of scallop dredges; and

(c) scallop catch records; and

(d) closed and open seasons; and

(e) the role of the reporting service; and

(f) the requirements of a report; and

(g) entering closed areas; and

(h) the transfer of scallop units; and

(i) the deactivation of licences.