National Environmental Management: Protected Areas Act: Regulations: Management of Benguela Muds Protected Area (No. R. 782 of 2019)

This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 23 MEI 2019 No. 42479 87 DEPARTMENT OF ENVIRONMENTAL AFFAIRS NO. R. 782 23 MAY 2019 R. 782 National Environmental Management: Protected Areas Act (57/2003): Regulations for the Management of the Benguela Muds Marine Protected Area 42479 NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS ACT, 2003 (ACT NO. 57 OF 2003) REGULATIONS FOR THE MANAGEMENT OF THE BENGUELA MUDS MARINE PROTECTED AREA I, Nomvula Paula Mokonyane, Minister of Environmental Affairs, hereby make the Regulations for the Management of the Benguela Muds Marine Protected Area in terms of sections 48A(2) and 86(1)(a), (b), (c) and (d) of the National Environmental Management: Protected Areas Act, 2003 (Act No. 57 of 2003), as set out in the Schedule hereto. NOMVULA PAULA MOKONYANE MINISTER OF ENVIRONMENTAL AFFAIRS This gazette is also available free online at www.gpwonline.co.za 88 No. 42479 GOVERNMENT GAZETTE, 23 MAY 2019 SCHEDULE 1. Definitions In these regulations, unless the context indicates otherwise, a word or expression that is defined in the Act bears the same meaning in these regulations, and in addition— “Act” means the National Environmental Management: Protected Areas Act, 2003 (Act No. 57 of 2003); “certificate of competence” means a certificate of competence as defined in the National Small Vessel Safety Regulations, 2007; “certificate of fitness” means a certificate of fitness as defined in the National Small Vessel Safety Regulations, 2007; “commercial fishing” shall have the meaning assigned to it in section 1 of the Marine Living Resources Act; “Controlled Zone” means an area within a marine protected area where fishing or any other activity in terms of section 48A(1) of the Act may take place if authorised in terms of these regulations as contemplated in terms of section 48A(2) of the Act; "environment" has the meaning assigned to it in section 1 of the National Environmental Management Act; “fish” means any aquatic plant or animal whether piscine or not, and any mollusc, crustacean, coral, sponge, holothurian or other echinoderm, reptile and includes their eggs, larvae and all juvenile stages, but does not include sea birds, seals or any marine mammal; “fishing” or to “fish” means— (a) searching for, catching, taking or harvesting fish or an attempt to undertake any such activity; (b) engaging in any other activity which can reasonably be expected to result in the locating, catching, taking or harvesting of fish; (c) placing, searching for or recovering any fish aggregating device or associated gear, including radio or tracking beacons; (d) any operation in support or in preparation of any activity described in this definition; or (e) the use of an aircraft in relation to any activity described in this definition; This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 23 MEI 2019 No. 42479 89 “fishing permit” means a commercial or small scale fishing permit issued in terms of the Marine Living Resources Act, which authorises fishing in the area where the Marine Protected Area is located; “hovercraft” means a craft that floats on a cushion of air and is capable of traversing water; “Integrated Coastal Management Act” means the National Environmental Management: Integrated Coastal Management Act, 2008 (Act No. 24 of 2008); “longline” means any line or connected lines or fishing gear to which a total of more than 10 fishing hooks is attached; “Marine Living Resources Act” means the Marine Living Resources Act, 1998 (Act No. 18 of 1998); “Marine Protected Area” means the Benguela Muds Marine Protected Area as declared by the Minister in terms of section 22A of the Act; "National Small Vessel Safety Regulations" means the Merchant Shipping (National Small Vessel Safety) Regulations, 2007, published in terms of section 356 of the Merchant Shipping Act, 1951 (Act No. 57 of 1951) and promulgated in Government Notice No. R. 705 of 8 August 2007; “operate” in respect of a vessel, includes mooring in the water, drifting in the water and ascending or descending from its mooring, the shore, launch site, a buoy or a jetty; “personal watercraft” means a vessel that uses an inboard motor powering a water jet pump as its primary source of propulsion, and is designed to be operated by a person or persons sitting, standing, or kneeling on rather than within the confines of a hull; “small-scale fishing or fisher’’ has the meaning ascribed to it in section 1 of the Marine Living Resources Act, 1998 (Act No. 18 of 1998); “specific environmental management Act” has the meaning assigned to it in the National Environmental Management Act; “Threatened or Protected Marine Species Lists” means the lists published in Government Gazette 40875 GN 476 of 30 May 2017, in terms of the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004); This gazette is also available free online at www.gpwonline.co.za 90 No. 42479 GOVERNMENT GAZETTE, 23 MAY 2019 “tuna pole fishing” means linefishing for tuna by manually operating a rod, reel and line or one or more separate lines to which no more than ten hooks are attached per line; “vessel” means a waterborne craft of any kind whether a surface craft or submarine, and whether self-propelled or not, and includes any moored floating structure that can be used as a means of transport by water and includes a personal watercraft and hovercraft; and “WGS 84” means the World Geodetic System of 1984 (G730), which is a geographic co-ordinate system. 2. Zonation within the Marine Protected Area The entire Benguela Muds Marine Protected Area is zoned as a single Controlled Zone which is determined by using WGS 84 as detailed in Annexure 1 hereto. 3. Scientific research permit (1) No person may undertake any scientific research within the Marine Protected Area, except on the authority of a scientific research permit issued by the Minister. (2) Application for a scientific research permit in terms of sub regulation (1) must be made to the Minister in accordance with the provisions of section 83 of the Marine Living Resources Act or any regulations published under the Integrated Coastal Management Act. 4. General restrictions within the Marine Protected Area (1) The owner, skipper or operator of a vessel shall not enter or operate a vessel in the Marine Protected Area without a valid certificate of competence and a certificate of fitness issued in respect of such vessel, and such original certificates must be available for inspection at all times. (2) A vessel shall not enter the Marine Protected Area unless the marking approved for that vessel in accordance with the provisions of the Merchant Shipping Act, 1951 (Act No. 57 of 1951), is displayed on the vessel at all times while the vessel is inside the Marine Protected Area. This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 23 MEI 2019 No. 42479 91 (3) The owner, skipper or operator of a vessel shall not enter or operate a vessel in the Marine Protected Area unless such vessel and any other equipment or contents of such vessel, comply with the safety and other requirements specified in the Merchant Shipping Act, 1951 (Act No. 57 of 1951) for such vessel. (4) No person may litter or leave any waste including fishing gear, hooks, bait packaging and fishing line within the Marine Protected Area. 5. Use of vessels (1) No person may moor or anchor any vessel in the Marine Protected Area except— (a) under conditions of force majeure; (b) for the use of a vessel by an employee of the Department or any other organ of state acting in the course and scope of their employment or mandate or (c) for any vessel which has a permit in terms of these regulations for any activity which requires anchoring or mooring. (2) Despite sub-regulation (1), the Minister may on application and on such conditions as he or she may deem appropriate, authorise the anchoring or mooring of a vessel in the following circumstances: (a) in an emergency; or (b) where the Minister may deem it to be necessary in order to ensure the proper management of the Marine Protected Area. (3) The Minister may verbally authorise a vessel to moor or anchor within the Marine Protected Area as contemplated in sub-regulation (2), which verbal authorisation must be confirmed in writing within 3 working days. (4) A vessel required by law to have a Vessel Monitoring System; must, when entering or traversing the Marine Protected Area with fishing gear onboard, ensure that the Vessel Monitoring System is active. This gazette is also available free online at www.gpwonline.co.za 92 No. 42479 GOVERNMENT GAZETTE, 23 MAY 2019 6. Restriction of activities No person may undertake any activity listed in section 48A(1) of the Act, in the Marine Protected Area, unless authorised to do so in terms of these regulations. 7. Control of activities in Marine Protected Area (1) No person shall fish, or attempt to fish in the Marine Protected Area unless they are in possession of a valid fishing permit which authorises such person to fish for the species specified in sub regulation (2). (2) Notwithstanding anything to the contrary, a person in possession of a fishing permit as contemplated in sub-regulation (1), may only fish for large pelagic species by longline and tuna pole within the Marine Protected Area, subject to the quantity, fish size limits, allowable effort, closed seasons or bag limits authorised by such fishing permit. (3) Fishing gear onboard a vessel or in possession of any person that enters or is present in the Marine Protected Area and who is not authorised to fish in terms of sub-regulation (1) must be stowed in the following manner: (a) In the case of line fishing from a vessel, all hooks, lures, sinkers and weights are disconnected from the line, all the line is reeled onto the reel or rolled up, and that rolled up line, hooks, lures, bait and weights on the vessel are packed away in a cabin, locker, hatch, wheel house or console of the vessel, or where that is not possible, place such gear on the deck of the vessel; (b) in the case of purse-seine fishing, no gear may be in the water; (c) in the case of trawl fishing, all nets, trawl boards and weights shall be stowed below deck or securely lashed to some part of the superstructure of the fishing vessel; (d) in the case of rock lobster fishing, all traps, nets and ropes shall be on board and tied down; and all dinghies shall be on board and lashed to the fishing vessel; This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 23 MEI 2019 No. 42479 93 (e) in the case of fishing with traps, other than rock lobster traps, all traps shall be on board and tied down; (f) in the case of any other nets including gillnets, cast nets and throw nets, nets shall be on board and packed away in a console, locker or any other container. (g) in the case of pole fishing, all poles will be secured above deck; (h) in the case of longline fishing, no branchline may be attached to the mainline and the entire mainline shall remain on the spool; and (i) in respect of all types of fishing where bait is used, such bait must remain packed away or be placed into a bait well, where available. (4) No person may collect broodstock in the Controlled Zone for undertaking aquaculture, without a permit from the Minister, which permit may be issued subject to conditions. (5) When considering a permit in terms of sub-regulation (4) the Minister must take into account the following factors (a) whether the species is listed as a threatened or protected species in terms of the Threatened or Protected Marine Species Lists and any prohibitions or restrictions therein; (b) whether the species has been listed on an International Union for the Conservation of Nature Red list, including an international, regional, or national Red List; (c) the objectives of this Marine Protected Area; (d) whether the species can be collected outside the Marine Protected Area; and (e) any other relevant criteria. 8. Suspension, amendment and cancellation of permits (1) Subject to sub-regulations (2) and (3), a permit issued under these regulations may be suspended, cancelled or amended at any time. This gazette is also available free online at www.gpwonline.co.za 94 No. 42479 GOVERNMENT GAZETTE, 23 MAY 2019 (2) A permit issued in terms of these regulations may be suspended, cancelled or amended, if— (a) the Minister is satisfied on the basis of information that was not considered when the permit was issued, that it is necessary or desirable to suspend, cancel or amend the permit to prevent deterioration or further deterioration of the environment within the Marine Protected Area; (b) similar permits held by other persons have also been reviewed and the suspension, cancellation or amendment does not unfairly discriminate against the holder in relation to other holders of similar permits; (c) permit holder is in breach of a condition contained in the permit; (d) permit holder provided incorrect or false information in the application for the permit; (e) holder of a permit has been convicted of an offence in terms of the Act, the National Environmental Management Act or a specific environmental management Act or any regulations issued thereunder; or (f) reason for the issuing of the permit no longer exists. (3) A permit issued in terms of these regulations may be amended— (a) if an error needs to be corrected or rectified; (b) at the request of the applicant; (c) for the proper management and implementation of these regulations; or (d) where the conditions or circumstances have changed since the original permit was issued. 9. Offences and penalties In addition to any offence in terms of section 89 of the Act, any person who contravenes or fails to comply with— (a) regulations 3(1), 4, 5(1), 5(4), 6 or 7(1) to 7(4); This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 23 MEI 2019 No. 42479 95 (b) a condition mentioned in a permit issued in terms of these regulations; or (c) a prohibition, instruction, rule or order imposed, given or issued under these regulations, is guilty of an offence and liable in the case of a first conviction to a fine not exceeding R5 million or to imprisonment for a period not exceeding five years and in the case of a second or subsequent conviction to a fine not exceeding R10 million or imprisonment for a period not exceeding 10 years or in both instances to both a fine and such imprisonment. 10. Short title and commencement These regulations are called the Benguela Muds Marine Protected Area Regulations and commences on 1 August 2019. This gazette is also available free online at www.gpwonline.co.za 96 No. 42479 GOVERNMENT GAZETTE, 23 MAY 2019 Annexure 1 (Zonation of Benguela Muds Marine Protected Area) The Benguela Muds Marine Protected Area is zoned as a single Controlled Zone. And is bounded by a series of straight lines sequentially joining the following offshore coordinates: A, B, C, and D; and a straight line joining the first and last co-ordinate. B e n g u e la M u d s M a ri n e P ro te ct e d A re a Z on at io n C o n tr o lle d L a rg e P e la g ic g ) S o O O Ó Ó MN MN N 0 5 K ilo m e te rs I I 1 6 °4 0 '0 "E 1 6 ° 4 8 '0 " E 1 6 °5 6 '0 "E This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 23 MEI 2019 No. 42479 97 Fig. 1. The zonation for the Benguela Muds Marine Protected Area This gazette is also available free online at www.gpwonline.co.za 98 No. 42479 GOVERNMENT GAZETTE, 23 MAY 2019 Table 1: The table of co-ordinates for the Benguela Muds Marine Protected Area POINT X Y Benguela Muds MPA A 16.666664 -32.583336 Benguela Muds MPA B 16.733333 -32.583333 Benguela Muds MPA C 16.816667 -32.716667 Benguela Muds MPAF D 16.75 -32.716667