Fisheries (Scallop) Rules 2005

Fisheries (Scallop) Rules 2005

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

S. KONS

Minister for Primary Industries and Water

PART 1 - Preliminary

1.   Short title

These rules may be cited as the Fisheries (Scallop) Rules 2005 .

2.   Commencement

These rules take effect on 25 April 2005.

3.   Interpretation

(1)  In these rules –

Act means the Living Marine Resources Management Act 1995 ;

authorised mooring means a mooring that is authorised by the Marine and Safety Authorityestablished under the Marine and Safety Authority Act 1997 ;

Bass Strait Central Zone Scallop Fishery means the fishery in Commonwealth waters managed by the Australian Fisheries Management Authority as defined under the Offshore Constitutional Settlement entered into between the Commonwealth and the States;

Bass Strait scallop fisher means a person holding a Commonwealth authority to take scallops from Commonwealth waters;

Bass Strait scallop trip means a fishing trip that a Bass Strait scallop fisher takes to the Bass Strait Central Zone Scallop Fishery in accordance with the requirements of his or her Commonwealth authority;

closed area (class 1) means a part of the scallop fishery designated as a closed area (class 1) under rule 17(1)(c)(i) ;

closed area (class 2) means a part of the scallop fishery designated as a closed area (class 2) under rule 17(1)(c)(ii) ;

closed season means a season or period during which the scallop fishery is closed to fishing;

Commonwealth authority means a licence, permit, right or other authority relating to a specific fishery granted under the Commonwealth Act;

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 date and time specified in the condition;

fishing period means a fishing period determined under rule 8 ;

Grade 1 penalty means the penalty specified in regulation 5 of the Fisheries Penalties Regulations 2001 ;

Grade 2 penalty means the penalty specified in regulation 6 of the Fisheries Penalties Regulations 2001 ;

Grade 3 penalty means the penalty specified in regulation 7 of the Fisheries Penalties Regulations 2001 ;

holder of a fishing licence includes (except in rules 31 and 33 ) a person who has approval to use the licence under section 87(2) of the Act;

immediate proximity, in relation to any place, means –

(a) within 100 metres of that place; or

(b) within such greater distance of that place as the Secretary by public notice may specify for the purposes of this definition;

licence quota amount, in relation to a fishing licence (scallop), means the total weight of scallops that make up the scallop quota units on that licence;

minimum size – see rule 17 ;

open season means a season or period during which the scallop fishery is open to fishing;

processing premises means a place, vessel or vehicle for which a fish processing licence is in force;

quota year means the period beginning on 1 March and ending on the last day of February in the following year;

recreational scallop licence means a licence referred to in rule 7(b) ;

relevant fishing certificate, in relation to a fishing licence, means the fishing certificate maintained by the Secretary under section 63 of the Act in respect of that fishing licence;

reporting service means an approved service under rule 34(1) ;

research quota unit means an entitlement to take scallops in accordance with rule 13(1) ;

scallop means fish of the species –

(a) Equichlamys bifrons (commonly known as queen scallop); or

(b) Pecten fumatus (commonly known as commercial scallop); or

(c) Mimachlamys asperrimus (commonly known as doughboy scallop);

scallop dredge – see rule 20 ;

scallop limited area means an area specified in Schedule 2 ;

scallop meat means any portion of a scallop that is –

(a) removed from an enclosing shell; or

(b) not attached or fastened to a shell;

scallop quota docket means a docket relating to the unloading of scallops that is part of the records required to be kept under the Act;

scallop quota unit – see rule 11(1) ;

scallop spat means a scallop that is less than 40 millimetres wide at its widest point;

site of unloading means the place where any scallops taken in State waters are first unloaded, whether it be –

(a) on land; or

(b) on a wharf, jetty or other structure connected to land;

undersize scallop means –

(a) a queen scallop (Equichlamys bifrons) that is less than 100 millimetres wide at its widest point; or

(b) a commercial scallop (Pecten fumatus) that is less than 90 millimetres wide at its widest point; or

(c) a doughboy scallop (Mimachlamys asperrimus) that is –

(i) less than 80 millimetres wide at its widest point; or

(ii) such other size as the Secretary by public notice may specify for the purposes of this definition;

unloading means causing or permitting scallops to be taken off a fishing vessel;

whole scallop means a scallop that has not been removed from its shell;

wild, in relation to the location of any species, or kind of fish, means any waters other than those to which a marine farming licence specifying that species or kind of fish relates.

(2)  In these rules, unless the contrary intention appears –

(a) a reference to a licensee's scallop quota units is taken not to include the licensee's research quota units; and

(b) a reference to a licensee's licence quota amount is taken not to include the amount, if any, of scallops that the licensee may take under a research quota unit.

(3)  For the purposes of these rules, a fishing trip is taken to have commenced when the vessel being used for the fishing trip departs from a public wharf or authorised mooring and to have ended when the vessel returns to a public wharf or authorised mooring.

(4)  In these rules, a reference to a "port of landing" includes –

(a) a wharf provided for public use at a port specified in Schedule 1 ; and

(b) a port (not specified in Schedule 1 ) where the holder of a fishing licence (scallop) is authorised, by that licence, to unload scallops.

4.   Application of rules

These rules apply to the fishery for scallop in State waters (the "scallop fishery").

5.   Duration of rules

These rules continue in force until 28 February 2010.

6.   Consultation arrangements

The Minister is to consult with the appropriate advisory committee established under section 27 of the Act in relation to the scallop fishery about any changes relating to –

(a) any area where fishing may occur; and

(b) any matter relating to the characteristics of fish; and

(c) any opening and closing of the scallop fishery; and

(d) any apparatus; and

(e) limits on taking and possessing fish.

7.   Classes of fishing licence

For the purposes of these rules, a fishing licence is one of the following classes:

(a) class scallop, fishing licence (scallop);

(b) class recreational scallop –

(i) fishing licence (recreational scallop dive); or

(ii) fishing licence (recreational scallop dredge);

(c) class vessel, fishing licence (vessel);

(d) class personal, fishing licence (personal);

(e) class commercial dive, fishing licence (commercial dive);

(f) class scallop spat collection, fishing licence (scallop spat collection).

PART 2 - General management of fishery

8.   Closed and open seasons for scallop fishery

The Minister, by public notice, may determine –

(a) the dates of the closed season for all or part of the scallop fishery; and

(b) the dates of the open season for all or part of the scallop fishery; and

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

(d) the dates of each fishing period of the open season.

9.   Taking or possessing scallops during closed season

(1)  A person must not –

(a) take scallops from State waters during a closed season; or

(b) be in possession of scallops during a closed season.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(2)  It is a defence in proceedings for an offence under subrule (1)(b) if the defendant establishes that the scallops in respect of which the offence is alleged to have been committed were –

(a) imported into the State; or

(b) taken, bought or sold –

(i) during an open season; or

(ii) under a Commonwealth authority to take scallops from Commonwealth waters; or

(c) in the defendant's possession –

(i) during an open season; or

(ii) under a Commonwealth authority to take scallops from Commonwealth waters; or

(3)  It is also a defence in proceedings for an offence under subrule (1)(b) if the defendant establishes that, at the relevant time, he or she was complying with a marine farming licence authorising the marine farming of scallops.

10.   Taking or possessing scallops during open season

(1)  A person must not, in State waters, take, or be in possession of scallops, during an open season unless –

(a) the person is –

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

(ii) authorised to participate in the scallop fishery during that open season; or

(b) the person is the holder of –

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

(ii) a fishing licence (recreational scallop dive); or

(c) the person is undertaking an Aboriginal cultural activity.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(2)  It is a defence in proceedings for an offence under subrule (1) if the defendant establishes that, at the relevant time, he or she was complying with a marine farming licence authorising the marine farming of scallops.

11.   Maximum amount of scallops

(1)  The maximum amount of scallops that may be taken for each scallop quota unit in a fishing licence (scallop) in a quota year is  –

(a) 400 kilograms; or

(b) such other amount as the Minister, by public notice, may set.

(2)  The holder of a fishing licence (scallop) must not, during a quota year, take more than the licence quota amount for that quota year.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(3)  The Minister, by public notice, is to specify for each fishing period or for a number of fishing periods in aggregate –

(a) the proportion of the licence quota amount that may be taken during that fishing period or fishing periods in aggregate; and

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

(4)  The holder of a fishing licence (scallop) must not in a fishing period or fishing periods in aggregate –

(a) take more than the proportion of the licence quota amount specified for the fishing period or fishing periods in aggregate by the Minister under subrule (3)(a) ; or

(b) during a fishing trip, take, or be in possession of on a fishing vessel, more scallops than the maximum amount specified under subrule (3)(b) for that fishing period or fishing periods in aggregate.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

(5)  A person who is not the holder of a fishing licence (scallop) must not, in any one day in State waters, take, or be in possession of, more than –

(a) 100 scallops; or

(b) if the Minister by public notice has set a lower number of scallops for the purposes of this subrule, that lower number of scallops.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(6)  A person must not be in possession of more than 200 whole scallops unless the person –

(a) is the holder of a licence that authorises the person to be in possession of more than that number of whole scallops; or

(b) has a sales receipt for the scallops in excess of 200 whole scallops.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(7)  A person must not be in possession of more than 5 kilograms of scallop meat unless the person –

(a) is the holder of a licence that authorises the person to be in possession of more than 5 kilograms of scallop meat; or

(b) has a sales receipt for the scallop meat in excess of 5 kilograms.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

12.   Overrun provisions

(1)  The Minister is to ensure that any quantity of scallops taken under a fishing licence (scallop) in a quota year, in excess of the licence quota amount for that quota year, is deducted in accordance with Part 1 of Schedule 3 from the licence quota amount for the next quota year.

(2)  The Minister is to ensure that any quantity of scallops taken under a fishing licence (scallop) in excess of the amount specified under rule 11(3)(a) for a fishing period or fishing periods in aggregate is deducted in accordance with Part 2 of Schedule 3 from the licence quota amount for the current quota year or the next quota year.

(3)  The Minister is to ensure that any quantity of scallops taken under a fishing licence (scallop) in excess of the amount specified under rule 11(3)(b) for a fishing period or fishing periods in aggregate is deducted from the licence quota amount for the current quota year or the next quota year as follows:

(a) for a quantity equal to 20% or less of the amount specified under rule 11(3)(b) , a deduction equivalent to the quantity taken;

(b) for a quantity greater than 20% and not more than 30% of the amount specified under rule 11(3)(b) , a deduction equivalent to 2 times the quantity taken;

(c) for a quantity greater than 30% and not more than 50% of the amount specified under rule 11(3)(b) , a deduction equivalent to 3 times the quantity taken.

(4)  The Minister is to ensure that any quantity of scallops taken under a fishing licence (scallop) from a part of the fishery in excess of the amount determined by the Minister under rule 17(1)(e) for that part of the fishery is deducted in accordance with Part 1 of Schedule 3 from the licence quota amount for the current quota year or the next quota year.

(5)  In this rule –

current quota year, in respect of scallops taken under a fishing licence (scallop), means the quota year in which those scallops were taken.

next quota year means the next quota year in which there is an open season.

13.   Research quota units

(1)  The Secretary may allocate research quota units to the holder of a fishing licence (scallop) in lieu of payment for approved research undertaken by the licence holder.

(2)  A research quota unit allocated under subrule (1) authorises the holder of the fishing licence (scallop) to take, for commercial purposes, the amount of scallops specified under subrule (3) (a).

(3)  The Secretary is to specify –

(a) the amount of scallops that may be taken under a research quota unit; and

(b) the conditions under which those scallops may be taken.

(4)  The holder of a fishing licence (scallop) who has been allocated a research quota unit under subrule (1)  –

(a) must not take more than the amount specified under subrule (3) (a) for that research quota unit; and

(b) must comply with any conditions specified under subrule (3) (b).

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(5)  A research quota unit is not to be permanently transferred.

(6)  The Secretary may, in the Secretary's discretion, transfer a research quota unit on a temporary basis.

14.   Quota unit balance

(1)  The holder of a fishing licence (scallop) must not take scallops for commercial purposes if the quota unit balance in relation to that licence is zero kilograms or less for the open season.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(2)  The holder of a fishing licence (scallop) must keep, on the fishing vessel specified in the relevant fishing certificate, records for the fishing period that show –

(a) the quota unit balance for the licence after each unloading; and

(b) the quota unit balance for the licence before the commencement of each fishing trip.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(3)  In this rule –

quota unit balance means the sum of the portion of the total weight of scallop quota units and the portion of the total weight of scallop research quota units specified in a fishing licence that remain uncaught.

15.   Taking undersize scallops

A person must not take undersize scallops from the wild unless –

(a) the person is the holder of a fishing licence (scallop spat collection) and takes only scallop spat; or

(b) the person is the holder of a fishing licence (scallop) and the undersize scallops taken constitute no more than 15% of the total amount of scallops taken by the person; or

(c) the person is complying with a marine farming licence authorising the marine farming of scallops.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

16.   Possessing undersize scallops

A person must not be in possession of undersize scallops taken from the wild unless –

(a) the person is the holder of a fishing licence (scallop spat collection) and is in possession only of scallop spat; or

(b) the person is the holder of a fishing licence (scallop) and the undersize scallops constitute no more than 15% of the total amount of scallops in the person's possession; or

(c) the person has bought or received the undersize scallops from a fish merchant; or

(d) the person is complying with a marine farming licence authorising the marine farming of scallops.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

17.   Open and closed parts of scallop fishery

(1)  The Minister, by public notice, may –

(a) open or close any specified part of the scallop fishery; and

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

(c) designate any closed part as –

(i) a closed area (class 1); or

(ii) a closed area (class 2); and

(d) specify the minimum size of scallops that may be taken from part of a scallop fishery; and

(e) specify the amount of scallops that may be taken from part of a scallop fishery.

(2)  A person must not, in any part of a scallop fishery, take or be in possession of scallops that are smaller than the minimum size specified by the Minister under subrule (1)(d) for scallops in that part of the scallop fishery.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

(3)  A person must not, in a part of a scallop fishery, take or be in possession of more than the amount of scallops specified by the Minister under subrule (1)(e) for that part of the scallop fishery.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

18.   Entering closed part of scallop fishery

(1)  The holder of a fishing licence (scallop) must ensure that the vessel specified in the relevant fishing certificate does not enter a closed area (class 1).

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

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

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

(3)  It is a defence in proceedings for an offence under subrule (1) or (2) if the defendant establishes that the safety of the vessel or crew would have been at risk had it not entered the closed area (class 1).

(4)  Subrule (1) does not apply to the holder of a fishing licence (scallop) while the fishing licence (scallop) is deactivated.

19.   Taking scallops in certain State waters

The holder of a fishing licence (scallop) or a recreational scallop licence must not take scallops during the open season in a scallop limited area unless that scallop limited area is open under rule 17(1) .

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

PART 3 - Scallop dredges

20.   Definition of 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 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 vessel.

21.   Deployment of scallop dredges, &c.

For the purposes of this Part –

(a) a scallop dredge is taken to have been deployed from a vessel if the scallop dredge (or any rope, chain, cable or other thing attached to the scallop dredge) is in or touching the water; and

(b) a scallop dredge is taken to be on board a vessel if no part of the scallop dredge (or any rope, chain, cable or other thing attached to the scallop dredge) is in or touching the water.

22.   Possessing scallop dredges

(1)  A person must not be in possession of a scallop dredge in State waters unless the person is –

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

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

(c) a Bass Strait scallop fisher.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(2)  A Bass Strait scallop fisher who is not the holder of a fishing licence (scallop) must not be in possession of a scallop dredge in State waters unless that scallop dredge is on board a fishing vessel.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(3)  The holder of a fishing licence (scallop) must not be in 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) , a person may be in possession of the tipper of a scallop dredge on board a fishing vessel while the fishing vessel is in State waters if that person has the written approval of the Secretary.

23.   Using or possessing scallop dredges in certain State waters

(1)  A person must not use or deploy a scallop dredge in a scallop limited area.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(2)  Subrule (1) does not apply to the holder of a fishing licence (recreational scallop dredge) or the holder of a fishing licence (scallop) if the scallop limited area is open under rule 17(1)(b) .

24.   Possessing scallop dredges in closed areas

(1)  A person must not be in possession of a scallop dredge in a closed area (class 1).

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(2)  However, a person may be in possession of the tipper of a scallop dredge on board a fishing vessel while the fishing vessel is in a closed area (class 1) if that person has the written approval of the Secretary.

25.   Deploying dredges in closed areas

(1)  A person must not deploy a scallop dredge from a vessel in a closed area (class 2).

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(2)  However, the holder of a fishing licence (scallop) may deploy a scallop dredge while in the immediate proximity of a port for the purpose of maintenance provided that –

(a) the dredge does not come into contact with the seabed; and

(b) the licence holder has written approval from a fisheries officer.

26.   Possessing scallop dredges during closed season

(1)  A person must not be in possession of a scallop dredge in State waters during a closed season.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(2)  Subrule (1) does not apply if the scallop dredge is on board a fishing vessel that –

(a) is returning to a port of landing within 48 hours after the end of the open season; or

(b) is leaving a port within 48 hours before the start of the open season; or

(c) is in port or on a mooring and not undertaking a fishing trip.

(3)  Subrule (1) does not apply to a Bass Strait scallop fisher during a Bass Strait scallop trip when the Bass Strait Central Zone Scallop Fishery is open.

(4)  A Bass Strait scallop fisher referred to in subrule (3) must not be in possession of a scallop dredge in State waters unless the scallop dredge is on board and remains on board a fishing vessel.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

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

27.   Using scallop dredges in State waters

(1)  A person must not use a scallop dredge in State waters unless the person is the holder of –

(a) a fishing licence (scallop); or

(b) a fishing licence (recreational scallop dredge).

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(2)  The holder of a fishing licence (scallop) must not use a scallop dredge in State waters unless –

(a) the width of the scallop dredge, measured from the outer edges of the dredge, is less than 4.5 metres; and

(b) if a tooth bar is used with the dredge –

(i) it is fixed above the sledge runners of the dredge; and

(ii) the distance between the teeth is at least 50 millimetres; and

(iii) the teeth project no more than 100 millimetres below the sledge runners of the dredge; and

(c) if a lip is used with the dredge, the lip projects no more than 50 millimetres below the sledge runners of the dredge.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(3)  The holder of a fishing licence (scallop) must not cause or permit more than one scallop dredge to be used from a fishing vessel.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

(4)  The holder of a fishing licence (recreational scallop dredge) must not, in State waters –

(a) use more than one scallop dredge; or

(b) use a scallop dredge that is more than 1.3 metres wide; or

(c) use a scallop dredge that has a tooth bar or pressure plate.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

PART 4 - Licences and scallop quota units

Division 1 - Licences

28.   Authority of licence

A fishing licence (scallop) only authorises the holder to –

(a) take the licence quota amount during a quota year; and

(b) take the weight of scallops equivalent to the research quota units specified in the licence; and

(c) use the fishing vessel specified in the relevant fishing certificate to take those scallops.

29.   Carrying copy of licence

The holder of a fishing licence (scallop) must, during a fishing trip, keep a copy of that licence on the fishing vessel used for that fishing trip.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

30.   Transferring licence

(1)  The Minister may refuse to transfer a fishing licence (scallop) from one person to another unless –

(a) the other person holds a fishing licence (vessel) and a transferable commercial fishing licence; or

(b) the licence is transferred together with the associated fishing licence (vessel) and any other fishing licences specified in the relevant fishing certificate.

(2)  The Minister is not to transfer a fishing licence (scallop) so that –

(a) 2 or more fishing licences (scallop) are specified in one relevant fishing certificate; or

(b) a person may, to take scallops, use a fishing vessel that is greater in length than the maximum vessel length permitted on the fishing licence (vessel) specified on the fishing certificate.

(3)  In this rule –

commercial fishing licence means a licence to take fish for commercial purposes.

31.   Restrictions on leasing, subleasing or lending licences

(1)  The holder of a fishing licence (scallop) may only apply for approval under section 87 of the Act to allow another person to use the licence by means of a leasing, subleasing or lending agreement if at least 50 scallop quota units are held on that fishing licence (scallop).

(2)  Subrule (1) does not apply if the fishing licence (scallop) is deactivated for the duration of the lease, sublease or loan.

Division 2 - Scallop quota units

32.   Transferring units

(1)  The Minister may transfer a scallop quota unit.

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

(3)  The Minister is not to transfer a scallop quota unit to a person who is not the holder of a fishing licence (scallop).

(4)  If only 10 scallop quota units are held on a fishing licence (scallop), the Minister is not to transfer any scallop quota units unless –

(a) they are transferred with the fishing licence (scallop) under rule 30 ; or

(b) the licence is surrendered to the Minister and the scallop quota units are transferred to the holder of another fishing licence (scallop).

(5)  Subrule (4) does not apply to the transfer of scallop quota units on a temporary basis.

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

33.   Minimum and maximum holdings

(1)  A person must not hold more than 6 separate fishing licences (scallop) at one time.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

(2)  The number of scallop quota units specified in a fishing licence (scallop) is to be at least 10 and not more than 1 200.

(3)  The holder of a fishing licence (scallop) must not hold more than 1 200 scallop quota units at one time.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

(4)  The holder of a fishing licence (scallop) must not, in that capacity, receive any payment or benefit from more than 1 200 scallop quota units.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

(5)  The Minister is to ensure that a fishing licence (scallop) with less than 50 scallop quota units held on it is deactivated.

(6)  Subrule (5) does not apply to a fishing licence (scallop) if the holder of the licence held less than 50 scallop quota units at the commencement of the Fisheries (Scallop) Rules 2000 .

PART 5 - Reporting

Division 1 - Reports

34.   Reporting service

(1)  A service may be approved to receive reports under these rules.

(2)  As soon as practicable after it receives a report under this Part, the reporting service is to issue the maker of the report with a report receipt number.

35.   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.

36.   Pre-fishing reports

The holder of a fishing licence (scallop) must, unless otherwise authorised, make a report to the reporting service before commencing a fishing trip to take scallops.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

37.   Unloading reports

(1)  The holder of a fishing licence (scallop) who is in possession of scallops on a fishing vessel must, at least 2 hours before entering the immediate proximity of the port of landing, make a report to the reporting service.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(2)  The holder of a fishing licence (scallop) who is in possession of scallops on a fishing vessel –

(a) must not unload any of those scallops unless a report was made to the reporting service under subrule (1) at least 2 hours before the unloading started; and

(b) must make an additional report to the reporting service –

(i) in respect of any partial unloading of scallops that occurs 5 or more hours after the initial unloading commenced; and

(ii) at least 30 minutes before commencing the partial unloading of the scallops.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

38.   Movement reports

The holder of a fish processing licence must make a report to the reporting service before any scallops are –

(a) moved from the immediate proximity of the fishing vessel from which they were unloaded; or

(b) moved into any premises.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

39.   Alternative arrangements for reporting

Rules 36 , 37 and 38 do not apply if –

(a) the relevant licence is endorsed for alternative arrangements relating to reporting requirements; and

(b) the licence holder complies with the terms of the endorsement.

40.   Making reports

A person must not, except with the written approval of the Secretary, make a report to the reporting service more than 24 hours before the activity to which the report relates is to take place.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

41.   Cancellation reports

If a person who makes a report to the reporting service does not undertake the activity to which the report relates, the person must make a further report to the reporting service within 2 hours after the activity was supposed to have occurred.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

42.   False, misleading or incomplete information

A person must not –

(a) omit any relevant information from a report required under this Part; or

(b) give any false or misleading information in a report required under this Part.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

43.   Provision of receipt numbers

A person who is issued with a report receipt number by the reporting service must provide that number to a fisheries officer when required to do so.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

Division 2 - Dockets and returns

44.   Scallop quota dockets

(1)  The holder of a fishing licence (scallop) must complete Part A of a scallop quota docket –

(a) before any scallops leave the immediate proximity of the site of unloading; and

(b) for each vehicle transporting scallops from the site of unloading.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(2)  Subrule (1) does not apply if the holder of the fishing licence (scallop) sells the scallops in accordance with rule 55 to a person who is not the holder of a fish processing licence.

(3)  The holder of a fish processing licence must complete or cause to be completed Part B of a scallop quota docket –

(a) before any scallops leave the immediate proximity of the site of unloading and enter any processing premises; and

(b) for each vehicle transporting scallops from the site of unloading.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(4)  A person who completes Part B of a scallop quota docket must write his or her full name and address on the docket.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

45.   Completed scallop quota dockets

(1)  The holder of a fishing licence (scallop) must –

(a) within 48 hours after unloading any scallops, ensure that the pink sheet of the completed scallop quota docket is received by the Secretary; and

(b) keep the white sheet of the completed scallop quota docket, in good condition, for at least 5 years.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(2)  The holder of a fish processing licence who receives any scallops must ensure that the yellow sheet of the completed scallop quota docket is carried with the scallops while they are being transported to the processing premises.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(3)  The holder of a fish processing licence who receives any scallops must keep the yellow sheet of the completed scallop quota docket, in good condition, at the processing premises for at least 5 years.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

46.   Conflicts of interest

(1)  The holder of a fish processing licence who also holds a fishing licence (scallop) must not complete Part B of the scallop quota docket for –

(a) any scallops landed by the person as the holder of the fishing licence (scallop); or

(b) any scallops landed by a person who is a director, shareholder, partner, employer or employee of the holder of the fishing licence (scallop).

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(2)  The holder of a fish processing licence must not complete Part B of the scallop quota docket for any scallops processed, received or transported as an employee or contractor of the holder of the fishing licence (scallop) who landed the scallops.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(3)  The holder of a fish processing licence to whom subrule (1) or (2) applies must ensure that –

(a) Part B of the scallop quota docket is completed by –

(i) a person not specified in subrules (1) and (2) ; or

(ii) an approved person; and

(b) the person who completes Part B writes his or her name and address on the docket.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

47.   Scallop processor returns

(1)  The holder of a fish processing licence must, within 48 hours after processing any scallops –

(a) complete an approved scallop processor return; and

(b) furnish that return to the Secretary.

Penalty:  Fine not exceeding the Grade 1 penalty.

(2)  However, if the Secretary by public notice specifies alternative return arrangements for the purposes of this rule, the holder of the fish processing licence must comply with those alternative return arrangements instead of subrule (1) .

Penalty:  Fine not exceeding the Grade 1 penalty.

(3)  In this rule –

return arrangements means the completion and furnishing of an approved scallop processor return;

scallop processor return means a return relating to processed scallops that is part of the records required to be kept under the Act.

48.   Scallop catch records

(1)  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.

(2)  In this rule –

scallop catch record means a record relating to scallop catch that is part of the records required to be kept under the Act.

PART 6 - Miscellaneous

49.   Removing scallops from shells, &c.

(1)  A person in State waters must not –

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

(b) be in possession of scallop meat.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

(2)  Subrule (1) does not apply if –

(a) the scallop meat is on a trading vessel and it  –

(i) is being prepared for cooking or is being cooked or consumed; or

(ii) has been processed in processing premises; or

(b) the scallop meat is on a recreational vessel and –

(i) there is no more than 5 kilograms of scallop meat in total on the vessel; and

(ii) the scallop meat has been purchased from a fish merchant or retail outlet.

(3)  Subrule (1)(a) does not apply to the holder of a fishing licence (scallop) if –

(a) he or she is on board a vessel; and

(b) the scallop is removed from its enclosing shell before the vessel is in the immediate proximity of a port of landing; and

(c) there is, in total, no more than 5 kilograms of scallop meat on board the vessel.

(4)  A holder of a fishing licence (scallop) may keep, or transfer to a deckhand, scallop meat that has been removed from its enclosing shell in accordance with subrule (3) once the vessel he or she is on has entered a port of landing.

(5)  The holder of a fishing licence (scallop) must provide a scallop sales receipt for scallop meat kept, or transferred, under subrule (4) to the person keeping or receiving the scallop meat, being a receipt specifying –

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

(b) the accurate weight of the scallop meat kept or transferred under subrule (4) ; and

(c) the name of the person receiving any scallop meat kept or transferred under subrule (4) .

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

(6)  A person who is in possession of scallop meat kept or transferred in accordance with subrule (4) must –

(a) keep the receipt provided under subrule (5) whilst the person is in possession of the scallop meat; and

(b) not sell or transfer that scallop meat.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

(7)  The holder of a fishing licence (scallop) who has kept, or transferred, scallop meat in accordance with subrule (4) must keep a copy of the receipt provided under subrule (5) , in good condition, for at least 5 years after the scallop meat was kept or transferred.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

(8)  In this rule –

deckhand, in relation to a vessel and any scallops, means a person who was on board the vessel as crew during the fishing trip in which the scallops were taken;

trading vessel means a vessel, other than a fishing vessel, that is used or is intended to be used, wholly or principally –

(a) to carry passengers or cargo for hire or reward; or

(b) to provide services to ships or shipping, whether for reward or otherwise.

50.   Transferring scallops from one vessel to another vessel

The holder of a fishing licence (scallop) must not transfer, or cause or permit to be transferred, any scallops from one vessel to another vessel.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

51.   Certain vessels not to be used for taking scallops

A person must not take scallops using a vessel that –

(a) has been used to take scallops outside State waters since the vessel last left port; or

(b) is carrying any scallops taken outside State waters.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

52.   Divers taking scallops

The holder of a fishing licence (scallop) must not permit more than 3 holders of fishing licences (commercial dive) to dive or swim from the fishing vessel specified in the relevant fishing certificate to take scallops.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

53.   Identifying unloaded scallops

The holder of a fish processing licence must ensure that –

(a) any scallops transported from a fishing vessel to processing premises are identifiable as scallops unloaded from the vessel; and

(b) scallops in the immediate proximity of the fishing vessel are held in no more than 2 types of containers.

Penalty:  Fine not exceeding the applicable Grade 2 penalty.

54.   Unloading at port of landing

(1)  The holder of a fishing licence (scallop) must not unload scallops at any place other than a port of landing unless –

(a) the licence is endorsed with alternative conditions relating to unloading; and

(b) the scallops are unloaded in accordance with those conditions.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(2)  A person unloading scallops from a fishing vessel must weigh those scallops –

(a) within the immediate proximity of the site of unloading; and

(b) before the scallops are taken into processing premises.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(3)  The holder of a fishing licence (scallop) must not unload any scallops in Victoria unless –

(a) the licence is so endorsed; and

(b) the holder of the fishing licence (scallop) complies with any conditions of that endorsement.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

55.   Transfer or sale to unlicensed persons

(1)  The holder of a fishing licence (scallop) must not transfer, sell or transport for sale more than 100 kilograms of whole scallops for each fishing tripunless the person receiving the scallops is the holder of a fish processing licence endorsed to process scallops.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(2)  The holder of a fishing licence (scallop) who transfers or sells 100 kilograms or less of whole scallops to a person who is not the holder of a fish processing licence must –

(a) give a scallop sales receipt to the person to whom the scallops are transferred or sold before the scallops are removed from the immediate proximity of the fishing vessel; and

(b) on the day that the transfer or sale occurs, record the accurate weight of scallops transferred or sold on the scallop quota docket.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(3)  The holder of a fishing licence (scallop) who unloads any scallops in Victoria must not transfer or sell those scallops to a person who is not the holder of a Tasmanian fish processing licence endorsed to process scallops.

Penalty:  Fine not exceeding the applicable Grade 3 penalty.

(4)  In this rule –

scallop sales receipt means a receipt relating to the sale of scallop that is part of the records required to be kept under the Act.

56.   Vessel monitoring systems

(1)  The provisions of Part 3 of the Fisheries Rules 1999 relating to a vessel monitoring system, other than rule 32 of those rules, apply to the holder of a fishing licence (scallop) as if –

(a) a reference in those rules to a supervisor of a fishing licence (vessel) were a reference to a supervisor of a fishing licence (scallop); and

(b) a reference in those rules to a holder of a fishing licence (vessel) were a reference to a holder of a fishing licence (scallop); and

(c) a reference in those rules to a notice in writing served were a reference to a notice in writing sent.

(2)  In this rule –

vessel monitoring system means a navigational measuring system that –

(a) determines the location and activities of a vessel; and

(b) is capable of transmitting data about that location and those activities via a satellite communication system.

57.   Transitional arrangements

(1)  A public notice under the Fisheries (Scallop) Rules 2000 that had force and effect for the purposes of those rules immediately before the commencement day is taken to be a public notice, having force and effect according to its terms, under and for the purposes of these rules.

(2)  In this rule –

commencement day means the day referred to in rule 2 .

58.   Statutory Rules rescinded

The Statutory Rules specified in Schedule 4 are rescinded.

SCHEDULE 1 - Ports

Rule 3(4)

1.   Beauty Point

2.   Bell Bay

3.   Bicheno

4.   Bridport

5.   Currie

6.   Devonport

7.   Dunalley

8.   George Town

9.   Grassy

10.   Hobart

11.   Lady Barron

12.   Lakes Entrance, Victoria

13.   Margate

14.   Port Welshpool, Victoria

15.   Queenscliff, Victoria

16.   St Helens

17.   Stanley

18.   Triabunna

19.   Ulverstone

SCHEDULE 2 - Scallop limited areas

Rules 3 , 19 and 23

SCHEDULE 3 - Overrun

Rule 12

PART 1 - Overrun for Rule 12(1) and (4)

PART 2 - Overrun for rule 12(2)

SCHEDULE 4 - Statutory Rules rescinded

Rule 58

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

Notified in the Gazette on 20 April 2005

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

EXPLANATORY NOTE

(This note is not part of the rule)

(a) the management of the scallop fishery; and

(b) licences for that fishery; and

(c) reporting and other requirements relating to that fishery; and

(d) the rescission of previous rules relating to that fishery.