Fisheries (Scallop) Amendment Rules 2004

Fisheries (Scallop) Amendment Rules 2004

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

S. Kons

Minister for Primary Industries and Water

1.   Short title

These rules may be cited as the Fisheries (Scallop) Amendment Rules 2004 .

2.   Commencement

These rules take effect on 4 June 2004.

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 omitting "Point Scott" from paragraph (a) of the definition of D'Entrecasteaux Channel and substituting "Scott Point";

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

deckhand means a person who was on board the fishing vessel for the fishing trip during which the scallops were caught;

(c) by omitting the definitions of fishing period , fishing period one , fishing period 2 and fishing period 3 and substituting the following definition:

fishing period means a fishing period determined under rule 11 ;

(d) by inserting the following definition after the definition of scallop dredge :

scallop meat means any portion of a scallop that is –

(a) removed from its enclosing shell; or

(b) not attached or fastened to a shell;

(e) by omitting "80" from paragraph (b) of the definition of undersize scallop and substituting "90".

5.    Rule 8 amended (Taking and possessing scallop)

Rule 8 of the Principal Rules is amended as follows:

(a) by inserting in subrule (1)(a) "and the licence holder has authorisation to participate in the fishery during that open season" after "(scallop)";

(b) by inserting in subrule (2) "or for a number of fishing periods in aggregate" after "period";

(c) by omitting from subrule (2)(a) "weight" and substituting "amount";

(d) by omitting from subrule (2)(b) "weight" and substituting "amount";

(e) by omitting from subrule (4) "fishing period one, fishing period 2 and fishing period 3" and substituting "the fishing periods";

(f) by omitting from subrule (6) "The" and substituting "Except where the Minister has determined by public notice that the number of whole scallops that may be taken in any one day is to be less than 100, the";

(g) by omitting subrule (7) and substituting the following subrules:

(7)  A person must not have possession of more than 200 whole scallops or 5 kilograms of scallop meat unless the person –

(a) is the holder of a licence which authorises the holder to be in possession of an amount of scallops in excess of 200 whole scallops or 5 kilograms of scallop meat; or

(b) has a sales receipt for those scallops in excess of 200 whole scallops or 5 kilograms of scallop meat.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(8)  A person must not, in a part of a scallop fishery, take or have possession of more than the amount of scallop determined by the Minister under rule 12(d) for that part of the fishery.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

6.    Rule 10 amended (Minimum size of scallop)

Rule 10 of the Principal Rules is amended as follows:

(a) by omitting from paragraph (b)(ii) "spat." and substituting "spat; or";

(b) by inserting the following paragraphs after paragraph (b) :

(c) take undersize scallop from the wild, or have possession of undersize scallop taken from the wild, unless the person –

(i) is a Bass Strait scallop fisher; and

(ii) has taken the undersize scallop during a Bass Strait scallop trip; or

(d) take undersize scallop from the wild unless –

(i) the person is the holder of a fishing licence (scallop); and

(ii) no more than 15% of the total amount of scallop in the possession of the holder of the licence are undersized; or

(e) have possession of undersize scallop taken from the wild unless the person –

(i) has taken the undersize scallop in accordance with paragraph (d) ; or

(ii) has received undersize scallop that were taken in accordance with paragraph (d) .

7.    Rule 11 amended (Closed and open season for scallop)

Rule 11 of the Principal Rules is amended as follows:

(a) by inserting the following paragraph after paragraph (b) in subrule (1) :

(ba) the number of fishing periods that will make up the open season; and

(b) by omitting subrule (2) .

8.    Rule 12 amended (Open and closed parts of fishery)

Rule 12 of the Principal Rules is amended as follows:

(a) by inserting the following paragraph after paragraph (a) :

(ab) open or close any specified part of the scallop fishery to a method of fishing; and

(b) by omitting from paragraph (b)(ii) "(class 2)." and substituting "(class 2); and";

(c) by inserting the following paragraphs after paragraph (b) :

(c) determine the minimum size of scallop that may be taken from part of a scallop fishery; and

(d) determine the amount of scallop that may be taken from part of a scallop fishery.

9.    Rule 14 amended (Possession of scallop dredge)

Rule 14(1) of the Principal Rules is amended by omitting paragraph (a) and substituting the following paragraphs:

(a) the holder of a fishing licence (scallop) and is authorised to participate in the fishery during an open season; or

(ab) the holder a fishing licence (recreational scallop dredge); or

10.    Rule 17 amended (Use of scallop dredges)

Rule 17(2)(a) of the Principal Rules is amended by omitting "dredge is less than 4.2 metres" and substituting "dredge, measuring from the outer edges of the dredge, is less than 4.5 metres".

11.    Rule 18 amended (Authority of licence)

Rule 18(b) of the Principal Rules is amended by omitting "fishing period one, fishing period 2 and fishing period 3" and substituting "the fishing periods".

12.    Rule 23 amended (Transfer of units)

Rule 23 of the Principal Rules is amended by omitting subrule (6) .

13.    Rule 24 amended (Minimum and maximum holdings)

Rule 24 of the Principal Rules is amended as follows:

(a) by omitting from subrule (1) "600" and substituting "1 200";

(b) by omitting from subrule (2) "600" and substituting "1 200";

(c) by omitting from subrule (3) "600" and substituting "1 200".

14.    Rule 40 substituted

Rule 40 of the Principal Rules is rescinded and the following rule is substituted:

40.   Removing scallop from shells

(1)  Subject to subrule (2) , a person in State waters must not –

(a) remove any scallop from its enclosing shell; or

(b) have possession of any scallop meat.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

(2)  Subrule (1)(a) does not apply to the holder of a fishing licence (scallop) who removes a scallop from its enclosing shell while on board a vessel, if the holder –

(a) has no more than 5 kilograms of scallop meat in total on board the vessel; and

(b) has removed the scallop from its enclosing shell before the vessel enters a port of landing.

(3)  The holder of a fishing licence (scallop) may retain, or transfer to the deckhands, scallop meat removed from its enclosing shell in accordance with subrule (2) once the vessel has entered a port of landing.

(4)  The holder of a fishing licence (scallop) must provide a receipt for scallop meat retained, or transferred, under subrule (3) to the person retaining or receiving the scallop meat specifying –

(a) the date and time the scallop meat is unloaded; and

(b) the accurate weight of the scallop meat retained or transferred under subrule (3) ; and

(c) the name of the person receiving any scallop meat retained or transferred under subrule (3) .

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

(5)  A person who is in possession of scallop meat retained, or transferred, in accordance with subrule (3) must –

(a) not sell or transfer that scallop meat; and

(b) retain the receipt provided under subrule (4) .

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

(6)  The holder of a fishing licence (scallop) who has retained, or transferred, scallop meat in accordance with subrule (3) must retain a copy of the receipt provided under subrule (4) for at least 5 years after the scallop meat was retained or transferred.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

15.    Rules 45 and 46 rescinded

Rules 45 and 46 of the Principal Rules are rescinded.

16.    Rule 47 amended (Identifying unloaded scallops)

Rule 47(b) of the Principal Rules is amended by omitting "from a fishing vessel are held on a vehicle" and substituting "in the immediate proximity of the fishing vessel are held".

17.    Rule 49 amended (Sale to unlicensed person)

Rule 49 of the Principal Rules is amended as follows:

(a) by omitting subrule (1) and substituting the following subrule:

(1)  The holder of a fishing licence (scallop) must not sell, or transport for sale, more than 100 kilograms in total of whole scallop for each fishing trip unless the purchaser is the holder of a fish processing licence endorsed to process scallop.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(b) by omitting from subrule (2)(b) "number and".

18.    Rule 50 amended (Overrun provisions)

Rule 50 of the Principal Rules is amended as follows:

(a) by omitting from subrule (2) "quantity" second occurring and substituting "amount";

(b) by omitting from subrule (2) "quantity" third occurring and substituting "amount";

(c) by omitting from subrule (3) "quantity" second occurring and substituting "amount";

(d) by omitting from subrule (3) "quantity" third occurring and substituting "amount";

(e) by omitting from subrule (3)(a) "quantity" second occurring and substituting "amount";

(f) by omitting from subrule (3)(b) "quantity" second occurring and substituting "amount";

(g) by inserting the following subrules after subrule (3) :

(4)  The Minister is to ensure that any quantity of scallop taken under a fishing licence (scallop) in excess of the amount determined by the Minister under rule 12(d) is deducted from the amount determined by the Minister under rule 12(d) for that part of the fishery during the next fishing period as follows:

(a) for a quantity of 1 000 kilograms or less, a deduction equivalent to the quantity taken;

(b) for a quantity greater than 1 000 kilograms and not more than 2 000 kilograms, a deduction equivalent to 2 times the quantity taken.

(5)  If an amount is to be deducted under subrule (4) for a part of the fishery and the Minister has not made a determination under rule 12(d) for that part of the fishery in respect of the next fishing period, the amount to be deducted under subrule (4) is to be deducted –

(a) from the amount specified under rule 8(2)(a) for the next fishing period in the open season; or

(b) if there are no further fishing periods in the open season, from the amount specified in rule 8(4) for the next open season.

19.    Schedule 1 amended (Ports of Landing)

Clause 1 of Schedule 1 to the Principal Rules is amended as follows:

(a) by inserting the following paragraphs after paragraph (f) :

(fa) Dunalley;

(fb) George Town;

(b) by inserting the following paragraph after paragraph (j) :

(ja) Margate;

(c) by inserting the following paragraph after paragraph (k) :

(ka) Queenscliff, Victoria;

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

Notified in the Gazette on 2 June 2004

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

EXPLANATORY NOTE

(This note is not part of the rule)

(a) by increasing the size requirements for certain commercial scallop; and

(b) in relation to the taking and possessing of scallop and undersize scallop; and

(c) in relation to the determination of the closed and open seasons and the fishing periods; and

(d) by increasing the permissible width of a scallop dredge to be used in State waters; and

(e) by increasing the maximum number of scallop units that may be held on a fishing licence (scallop); and

(f) by removing the requirement for the type and size of containers to be endorsed on a licence; and

(g) by clarifying a point of law in relation to the amount of scallop that may be sold and transported; and

(h) by adding Dunalley, George Town, Margate and Queenscliff as ports of landing; and

(i) by making minor consequential and miscellaneous amendments.