Tokelau (Exclusive Economic Zone) Fishing Regulations, 2012

2012/278 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 Jerry Mateparae, Governor-General Order in Council At Wellington this 24th day of September 2012 Present: The Right Hon John Key presiding in Council Pursuant to sections 8 and 11 of the Tokelau (Territorial Sea and Ex clusive Economic Zone) Act 1977 and section 4 of the Tokelau Act 1948, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, makes the following regulations. Contents Page 1 Title 4 2 Commencement 4 3 Interpretation 4 Licensing authority appointment and operation 4 Administrator is licensing authority 6 5 Requirements for Administrator when acting as licensing authority 7 1 http://www.legislation.govt.nz/pdflink.aspx?id=DLM20902 http://www.legislation.govt.nz/pdflink.aspx?id=DLM20908 http://www.legislation.govt.nz/pdflink.aspx?id=DLM248025 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 2012/278 Licensing of foreign fishing craft 6 Unlicensed foreign fishing craft prohibited from fishing in exclusive economic zone 7 7 Applications for licence to be made to Administrator 8 8 Material to accompany or support application 8 9 Electronic signature 8 10 Conditions implied in all licences 8 11 Variation of licences 9 12 Renewal of licences 10 13 Suspension and cancellation of licence for breach of condition or law, or for conviction 10 14 General power of Administrator to suspend or cancel licence or class of licence 10 15 Effect of suspension or cancellation of licence 11 Licensing of purse seine vessels 16 Procedure for granting licence to purse seine vessels 11 17 Fee for grant or renewal of licence to purse seine vessels 12 18 Condition of licence for purse seine vessels 12 19 Cancellation of licence for breach of condition 12 20 Vessel days for purse seine vessels 12 Licensing of non-purse seine vessels 21 Procedure for granting licence to non-purse seine vessels 13 22 Fee for grant or renewal of licence to non-purse seine vessels 14 23 Conditions of licence for non-purse seine vessels 14 24 Cancellation of licence for breach of condition 14 25 Access charges 14 26 Administrator may set aggregate fishing limits for non-purse seine vessels 15 Licensing of foreign fishing craft that hold regional fishery licence 27 Procedure for granting licence when regional fishery licence is granted by agency 15 28 Conditions of licence for foreign fishing craft issued with regional fishery licence 15 29 Cancellation of licence for breach of condition 16 Permitted and prohibited activities 30 Fishing for research, experimental, or sporting purposes 16 31 Prohibition on interfering with fisheries 17 32 Prohibition on transhipment of catch in territorial sea 17 2 2012/278 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 33 Prohibition on transhipment of catch in exclusive economic zone 17 34 Prohibition on possession of driftnets 18 35 Prohibition on use of driftnets 18 Offences 36 Crew member defined 18 37 Offence for foreign fishing craft to fish without licence 19 38 Offence for foreign fishing craft to fish in breach of condition of licence 19 39 Offence to obstruct or hinder constable or authorised officer 19 Security for release, and forfeiture, of foreign fishing craft, equipment, and fish 40 Application for release of detained foreign fishing craft 19 41 Security for release of foreign fishing craft 20 42 When bond has effect 21 43 Administrator may sell perishable seized property 21 44 Court may order forfeiture of foreign fishing craft and equipment 22 45 Court may order forfeiture of fish or proceeds of sale 22 Observer programme 46 Appointment of observers 22 47 Observer may be placed on foreign fishing craft 23 48 Administrator to give notice of intention to place observer on foreign fishing craft 23 49 Powers of observers and obligations of persons on foreign fishing craft carrying observers 24 50 Food and accommodation to be provided for observers 24 51 Supervision by observers of transhipments, dumping of fish, and fishing outside exclusive economic zone 25 Miscellaneous matters 52 Administrator must keep registers 26 53 Designation and appointment of authorised officers 26 Savings, transitional, revocation, and amendment provisions 54 Existing licences saved 26 55 Tokelau (Exclusive Economic Zone) Fishing Regulations 1988 continue to apply to existing licences 27 56 Revocation 27 3 r 1 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 2012/278 57 Consequential amendments to these regulations relating to Criminal Procedure Act 2011 27 58 Tokelau Administration Regulations 1993 amended 27 59 Updated references 28 Schedule 29 Consequential amendments to these regulations relating to Criminal Procedure Act 2011 Regulations 1 Title These regulations are the Tokelau (Exclusive Economic Zone) Fishing Regulations 2012. 2 Commencement These regulations come into force on the 28th day after the date of their notification in the Gazette. 3 Interpretation (1) In these regulations, unless the context otherwise requires,— access chargemeans a charge payable under these regulations for a non-purse seine vessel to access the exclusive economic zone for periods of time in order to be used for fishing in ac cordance with a licence granted under regulation 21 Act means the Tokelau (Territorial Sea and Exclusive Eco nomic Zone) Act 1977 Administrator means the Administrator of Tokelau agency means the body or person authorised by or under the Fisheries Treaty to issue a regional fishery licence aquatic life— (a) means any species of plant or animal life that, at any stage in its life history, must inhabit water, whether liv ing or dead; and (b) includes seabirds (whether or not in the aquatic envir onment) 4 http://www.legislation.govt.nz/pdflink.aspx?id=DLM20058 http://www.legislation.govt.nz/pdflink.aspx?id=DLM20058 2012/278 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 r 3 driftnet means a gillnet or other net that— (a) either singly or tied or connected together in combin ation with other nets is more than 1 kilometre in length; and (b) acts by enmeshing, entrapping, or entangling any fish or aquatic life; and (c) acts by drifting in, or on the surface of, the water; and (d) does not have attached to it sufficient means of anchor ing it to any point of land or the seabed (irrespective of whether the net has attached to it any means of being attached to any fishing craft) Fisheries Treaty— (a) means the Treaty on Fisheries Between the Govern ments of Certain Pacific Island States and the Gov ernment of the United States of America done at Port Moresby on 2 April 1987 and the annexes and sched ules of the Treaty; and (b) includes any amendments to, or replacements of, the Treaty, the annexes, or the schedules that are, or will become, binding on New Zealand in respect of Tokelau fishing limitmeans a limit on fishing specified by the Admin istrator by— (a) reference to the number, or weight, of fish that may be caught; or (b) reference to the species of fish, or the number, or weight, of the species of fish, that may be caught; or (c) reference to the number of days on which non-purse seine vessels may fish within a specified period of time; or (d) any other method that the Administrator considers ap propriate in the circumstances licence means a licence— (a) for a purse seine vessel that is granted under regulation 16; or (b) for a non-purse seine vessel that is granted under regu lation 21; or (c) that is granted under regulation 27 for a foreign fishing craft that holds a regional fishery licence 5 r 4 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 2012/278 New Zealand Government shipmeans a ship that belongs to Her Majesty or is held by any person on behalf of, or for the benefit of, Her Majesty; but does not include a ship that is set aside for, or used by, the Armed Forces of New Zealand non-purse seine vessel means a foreign fishing craft that is not a purse seine vessel purse seine net means a net that is operated from a vessel to encircle fish and drawn together at the bottom to enclose the fish purse seine vessel means a foreign fishing craft that uses a purse seine net to catch fish regional fishery licencemeans a licence issued by the agency in accordance with the Fisheries Treaty that permits a foreign fishing craft to fish in the exclusive economic zone seaweed includes all kinds of algae and sea-grasses that grow in the exclusive economic zone at any stage of their life history, whether living or dead transhipment means the transfer of fish, aquatic life, or sea weed from a fishing craft to another vessel vessel day has the same meaning as under the vessel day scheme operated by the Parties to the Nauru Agreement in accordance with the Palau Arrangement for the Management of the Western Pacific Purse Seine Fishery. (2) In these regulations, unless the context otherwise requires, court, exclusive economic zone and zone, fish, fishing, fish ing craft, foreign fishing craft, master, owner, take, and territorial sea have the meanings given to them by section 2 of the Act. Licensing authority appointment and operation 4 Administrator is licensing authority The Administrator is appointed as the licensing authority for the purposes of these regulations. 6 http://www.legislation.govt.nz/pdflink.aspx?id=DLM20064 2012/278 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 r 6 5 Requirements for Administrator when acting as licensing authority When acting in his or her capacity as the licensing authority, the Administrator must,— (a) by written notice, seek the views of the General Fono (or, if the General Fono is not in session, the Council for the Ongoing Government) before— (i) prescribing an aggregate number of vessel days in accordance with regulation 20; or (ii) setting an aggregate fishing limit in accordance with regulation 26; or (iii) consenting to fishing for the purpose of fisheries research, experimentation, or sport, or imposing any conditions on that fishing, in accordance with regulation 30(2)(a) and (b); and (b) have regard to any views the Administrator receives from the General Fono (or the Council for the Ongoing Government) in response to written notice given in ac cordance with paragraph (a), provided those views are received by the Administrator within— (i) 10 working days of giving the written notice; or (ii) if the circumstances require, a shorter period of time specified by the Administrator in the written notice; and (c) have regard to the Arrangement for the Participation of Tokelau in the Palau Arrangement Vessel Day Scheme between the Participants to the Palau Arrangement and Tokelau. Licensing of foreign fishing craft 6 Unlicensed foreign fishing craft prohibited from fishing in exclusive economic zone No foreign fishing craft may be used for fishing in the exclu sive economic zone unless a valid licence has been granted for that craft, and the licence has not expired or been suspended or cancelled. 7 r 7 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 2012/278 7 Applications for licence to be made to Administrator (1) An application for a licencemust be made to the Administrator in the manner specified by the Administrator, either generally or in any particular case. (2) Subclause (1) is subject to regulation 27. 8 Material to accompany or support application (1) An application for a licence must be accompanied or sup ported by the information the Administrator reasonably re quires, either generally or in any particular case, to determine whether to grant the application. (2) The Administrator may require an applicant for a licence to provide a guarantor who, in the opinion of the Administrator, is of good standing. (3) If the Administrator requires a guarantor to be provided, the Administrator must, by means of a contract given to the ap plicant, specify the terms of the guarantee that the guarantor must give. (4) In this regulation, guarantor means a person who guarantees the performance of the applicant’s obligations under the li cence. 9 Electronic signature A requirement for an application for a licence, a licence, or any associated documents to be signed or witnessed is met by means of an electronic signature if the electronic signature— (a) adequately identifies the signatory; and (b) adequately indicates the signatory’s approval of the in formation to which the signature relates. 10 Conditions implied in all licences (1) The following conditions are deemed to be implied in every licence for a foreign fishing craft: (a) a driftnet must not be on board the craft while the craft is in the exclusive economic zone; and (b) the craft must not use a driftnet for fishing in the exclu sive economic zone; and 8 2012/278 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 r 11 (c) the craft must not be used for fishing within the territor ial sea; and (d) the Administrator may, by written invoice sent to the li censee of the craft, recover from the licensee reasonable costs incurred by the Administrator that arise from any or all of the activities in subclause (2). (2) The activities are— (a) administering and managing fishing that is done by the foreign fishing craft; or (b) administering and managing transhipment in accord ance with regulation 33(2); or (c) placing an observer on the craft; or (d) a constable or an authorised officer, or an assistant of a constable or an authorised officer, exercising the powers conferred by section 12 of theAct in relation to the craft; or (e) any other activity that is required to administer and manage the craft while it is fishing or otherwise oper ating in the exclusive economic zone or the territorial sea. (3) In this regulation, observer means— (a) an observer appointed under regulation 46; or (b) any other person who is placed by the Administrator— (i) on a foreign fishing craft that is licensed to fish in the exclusive economic zone; and (ii) for the purposes of collecting reliable and accur ate information for fisheries research, fisheries management, and fisheries enforcement. 11 Variation of licences (1) The Administrator may vary the terms and conditions of a li cence provided that the Administrator gives the licensee writ ten notice 45 days or more before the variation takes effect. (2) However, the Administrator may vary the terms and condi tions of a licence with immediate effect if the Administrator— (a) considers the variation is required urgently because of circumstances that arise, or information that is received; and (b) gives the licensee written notice of the variation. 9 http://www.legislation.govt.nz/pdflink.aspx?id=DLM20910 r 12 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 2012/278 12 Renewal of licences (1) The Administrator may— (a) renew a licence on the same conditions; or (b) renew a licence on such different conditions as the Ad ministrator thinks fit; or (c) refuse to renew a licence. (2) The process for renewing a licence is the same as that for ap plying for a licence. 13 Suspension and cancellation of licence for breach of condition or law, or for conviction (1) The Administrator may— (a) suspend a licence for a foreign fishing craft for any period specified by the Administrator; or (b) cancel a licence for a foreign fishing craft. (2) However, subclause (1) applies only if— (a) the Administrator is satisfied that the craft has been used for fishing in the exclusive economic zone in breach of any condition of the licence or of any law relating to fishing in the zone; or (b) the Administrator is satisfied that the craft has been used in breach of a condition in regulation 10(1)(a) or (c); or (c) after reasonable attempts to do so, the Administrator has been unable to recover costs incurred in relation to the craft in accordance with regulation 10(1)(d); or (d) a licensee, master, or crew member of the craft has been convicted of any offence against— (i) the Act; or (ii) these regulations; or (iii) any other law relating to fishing in the exclusive economic zone. (3) Regulations 19, 24, and 29 override this regulation. 14 General power of Administrator to suspend or cancel licence or class of licence (1) The Administrator may— (a) suspend a licence or class of licence for any period spe cified by the Administrator; or (b) cancel a licence or class of licence. 10 2012/278 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 r 16 (2) However, subclause (1) applies only if the Administrator, with the concurrence of the Minister of Foreign Affairs, is satisfied that the suspension or cancellation is necessary or expedient for— (a) the proper regulation of fishing in the exclusive eco nomic zone, including compliance with international treaties, conventions, or agreements that are binding on New Zealand in respect of Tokelau; or (b) the conservation and management of fisheries resources within the exclusive economic zone. (3) Before suspending or cancelling a licence or class of licence under this regulation, the Administrator must inform the Gen eral Fono (or, if the General Fono is not in session, the Council for the Ongoing Government) by written notice of— (a) the intention to suspend or cancel; and (b) the reasons for suspending or cancelling. (4) The Administrator must not delegate the power of suspension or cancellation in this regulation to any other person. (5) Regulations 19, 24, and 29 override this regulation. 15 Effect of suspension or cancellation of licence (1) A licence has no effect for a period during which it is sus pended. (2) If a licence for a foreign fishing craft is cancelled,— (a) any vessel days purchased under the licence for the craft are automatically forfeited to the Administrator without compensation: (b) any access charges paid for the craft are automatically forfeited to the Administrator without compensation. (3) This regulation applies to all licences that are suspended or cancelled in accordance with any provision of these regula tions. Licensing of purse seine vessels 16 Procedure for granting licence to purse seine vessels (1) The Administrator must consider each application that is made for a licence for a purse seine vessel. (2) The Administrator may— 11 r 17 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 2012/278 (a) grant to the owner of the vessel a licence that permits the vessel to be used to fish in the exclusive economic zone provided that vessel days are purchased for that vessel in accordance with regulation 20; or (b) refuse to grant a licence. (3) A licence may be granted under subclause (2)— (a) for a period specified in the licence; and (b) subject to any conditions the Administrator thinks fit and specifies in the licence. 17 Fee for grant or renewal of licence to purse seine vessels (1) A fee of US$7,500 is payable to the Administrator, by every licensee, for— (a) a licence granted under regulation 16; and (b) the renewal under regulation 12 of a licence granted under regulation 16. (2) The Administrator may refuse to issue a licence until the fee has been paid. 18 Condition of licence for purse seine vessels (1) The condition in subclause (2) is implied in every licence granted under regulation 16. (2) A purse seine vessel must not be used to fish in the exclusive economic zone in a calendar year for more than the number of vessel days purchased for the vessel for the calendar year. 19 Cancellation of licence for breach of condition (1) If the Administrator is satisfied that a purse seine vessel for which a licence has been granted under regulation 16 has been used in breach of the condition in regulation 18, the Adminis trator must cancel that licence. (2) If a licence is cancelled under subclause (1),— (a) the cancellation is effective from the time and date on which the vessel first breached the condition; and (b) the vessel is unlicensed from that time and date. 20 Vessel days for purse seine vessels (1) The Administrator may— 12 2012/278 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 r 21 (a) prescribe the aggregate number of vessel days that may be sold to purse seine vessels for the 2014 calendar year and for each later calendar year; and (b) set the purchase price for a vessel day; and (c) sell vessel days for a purse seine vessel for which a licence has been granted under regulation 16. (2) The purchase price set for a vessel day may vary for differing periods of time, circumstances, or vessels. (3) However, the Administrator— (a) must not sell more than 1 000 vessel days (in aggregate) to purse seine vessels for the 2013 calendar year; and (b) must not sell more than the prescribed aggregate num ber of vessel days to purse seine vessels for the 2014 and later calendar years; and (c) may refuse to grant vessel days to a purse seine vessel until the total purchase price for the days purchased for the vessel has been received. Licensing of non-purse seine vessels 21 Procedure for granting licence to non-purse seine vessels (1) The Administrator must consider each application that is made for a licence for a non-purse seine vessel. (2) The Administrator may— (a) grant to the owner of the vessel a licence that permits the vessel to be used to fish in the exclusive economic zone— (i) for periods of time for which an access charge has been paid in accordance with regulation 25; and (ii) in compliancewith any fishing limits that are spe cified in the licence for the vessel; or (b) refuse to grant a licence. (3) A specified fishing limit may vary for differing periods of time, species, circumstances, or vessels. (4) A licence may be granted under subclause (2)— (a) for a period specified in the licence; and (b) subject to any conditions the Administrator thinks fit and specifies in the licence. 13 r 22 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 2012/278 22 Fee for grant or renewal of licence to non-purse seine vessels (1) A fee of US$5,000 is payable to the Administrator, by every licensee, for— (a) a licence granted under regulation 21; and (b) the renewal under regulation 12 of a licence granted under regulation 21. (2) The Administrator may refuse to issue a licence until the fee has been paid. 23 Conditions of licence for non-purse seine vessels The following conditions are implied in every licence granted under regulation 21: (a) a non-purse seine vessel must not be used to fish in the exclusive economic zone during a period of time for which no access charge has been paid for the vessel; and (b) a non-purse seine vessel must not be used to fish in the exclusive economic zone in a manner that breaches any fishing limit that is specified in the licence for the vessel. 24 Cancellation of licence for breach of condition (1) If the Administrator is satisfied that a non-purse seine vessel for which a licence has been granted under regulation 21 has been used in breach of a condition in regulation 23, the Ad ministrator must cancel that licence. (2) If a licence is cancelled under subclause (1),— (a) the cancellation is effective from the time and date on which the vessel first breached the condition; and (b) the vessel is unlicensed from that time and date. 25 Access charges (1) The Administrator may— (a) set the period or periods of time for which access charges are payable; and (b) set the amounts of access charges; and (c) collect access charges. 14 2012/278 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 r 28 (2) The matters set in accordance with subclause (1)(a) or (b) may vary for differing periods of time, circumstances, or vessels. 26 Administrator may set aggregate fishing limits for non-purse seine vessels (1) The Administrator may set 1 or more aggregate fishing limits for a specified period for— (a) all non-purse seine vessels: (b) a class of non-purse seine vessels. (2) The fishing limits specified in licences for non-purse seine ves sels in accordance with regulation 21(2)(a)(ii) must not, in ag gregate in the specified period, exceed an aggregate fishing limit set by the Administrator for all non-purse seine vessels. (3) The fishing limits specified in licences for a particular class of non-purse seine vessels in accordance with regulation 21(2)(a)(ii) must not, in aggregate in the specified period, exceed an aggregate fishing limit set by the Administrator for that class of non-purse seine vessels. Licensing of foreign fishing craft that hold regional fishery licence 27 Procedure for granting licence when regional fishery licence is granted by agency (1) If the Administrator is notified by the agency that it has issued a regional fishery licence for a foreign fishing craft, the Ad ministrator must grant to the owner of that craft a licence that permits the craft to fish in the exclusive economic zone. (2) A licence granted under subclause (1)— (a) is valid only for the period of time that the regional fish ery licence issued for the foreign fishing craft is valid; and (b) may be granted subject to any conditions the Adminis trator thinks fit and specifies in the licence. 28 Conditions of licence for foreign fishing craft issued with regional fishery licence The following conditions are implied in every licence granted under regulation 27: 15 r 29 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 2012/278 (a) a foreign fishing craft must not be used to fish in the exclusive economic zone in a manner that breaches any term, condition, or requirement of the regional fishery licence issued for that craft; and (b) a foreign fishing craft may be used to fish in the ex clusive economic zone only for the period of time that the regional fishery licence issued for the foreign fish ing craft is valid. 29 Cancellation of licence for breach of condition (1) If the Administrator is satisfied that a foreign fishing craft for which a licence has been granted under regulation 27 has been used in breach of a condition in regulation 28, the Administra tor must cancel that licence. (2) If a licence is cancelled under subclause (1),— (a) the cancellation is effective from the time and date on which the craft first breached the condition; and (b) the craft is unlicensed from that time and date. Permitted and prohibited activities 30 Fishing for research, experimental, or sporting purposes (1) A foreign fishing craft may be used for fishing in the exclusive economic zone for the purpose of— (a) fisheries research; or (b) experimentation; or (c) sport. (2) However, subclause (1) applies only if— (a) the Administrator has given his or her prior written con sent to the craft being used for fishing for that purpose; and (b) the fishing is carried out in accordance with any condi tions the Administrator thinks fit and specifies in his or her consent; and (c) any fee the Administrator may impose on a craft that is to be used for fishing for the purpose of sport has been paid in full. (3) This regulation overrides regulation 6. 16 2012/278 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 r 33 31 Prohibition on interfering with fisheries (1) A substance, an article, or a living organism (other than fishing equipment or bait) must not be put or released into the sea of the exclusive economic zone from a foreign fishing craft if it is likely— (a) to cause harm to any fish or marine mammal; or (b) to obstruct fishing equipment; or (c) to become a hazard to navigation. (2) A person who breaches subclause (1) commits an offence and is liable on summary conviction to a fine not exceeding $10,000. 32 Prohibition on transhipment of catch in territorial sea (1) Fish, aquatic life, or seaweed must not be transhipped from a foreign fishing craft in the territorial sea. (2) If subclause (1) is breached, the licensee, the owner, the mas ter, and each other crew member of the foreign fishing craft commit an offence and are liable on summary conviction to a fine not exceeding $10,000. 33 Prohibition on transhipment of catch in exclusive economic zone (1) Fish, aquatic life, or seaweed must not be transhipped from a foreign fishing craft in the exclusive economic zone. (2) However, subclause (1) does not apply to a transhipment at the direction of the Administrator. (3) If subclause (1) is breached, the licensee, the owner, the mas ter, and each other crew member of the foreign fishing craft commit an offence and are liable on summary conviction to a fine not exceeding,— (a) in the case of the owner or master of an unlicensed for eign fishing craft, $100,000; and (b) in the case of any other crew member of an unlicensed foreign fishing craft, $5,000; and (c) in the case of the licensee or master of a licensed foreign fishing craft, $25,000; and (d) in the case of any other crew member of a licensed for eign fishing craft, $1,500. 17 r 34 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 2012/278 34 Prohibition on possession of driftnets (1) A driftnet must not be on board a foreign fishing craft while the craft is— (a) in the exclusive economic zone; or (b) in the territorial sea. (2) Subclause (1) applies to both licensed and unlicensed foreign fishing craft. (3) If subclause (1)(a) or (b) is breached, the licensee (if any), the owner, the master, and each other crew member of the foreign fishing craft commit an offence and are liable on summary conviction to a fine not exceeding $10,000. 35 Prohibition on use of driftnets (1) A foreign fishing craft must not use a driftnet for fishing— (a) in the exclusive economic zone; or (b) in the territorial sea. (2) Subclause (1) applies to both licensed and unlicensed foreign fishing craft. (3) If subclause (1)(a) or (b) is breached, the licensee (if any), the owner, the master, and each other crew member of the foreign fishing craft commit an offence and are liable on summary conviction to a fine not exceeding $10,000. Offences 36 Crew member defined In regulations 37 and 38, crew member does not include— (a) a licensee, an owner, or a master of a foreign fishing craft; or (b) any observer who is on a foreign fishing craft in accord ance with— (i) a condition specified in a licence in accordance with regulation 16(3)(b), 21(4)(b), or 27(2)(b); or (ii) a condition specified in a consent in accordance with regulation 30(2)(b); or (iii) the Fisheries Treaty. 18 2012/278 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 r 40 37 Offence for foreign fishing craft to fish without licence (1) If a foreign fishing craft that is not licensed under these regula tions is used for fishing in the exclusive economic zone (other wise than in accordance with regulation 30), the owner, the master, and each crew member of the craft commit an offence. (2) Every owner or master of a foreign fishing craft who commits an offence against subclause (1) is liable on summary convic tion to a fine not exceeding $100,000. (3) Every crew member of a foreign fishing craft who commits an offence against subclause (1) is liable on summary conviction to a fine not exceeding $5,000. 38 Offence for foreign fishing craft to fish in breach of condition of licence (1) If a foreign fishing craft is used for fishing in the exclusive economic zone in contravention of any condition of a licence granted for it under these regulations, the licensee, the master, and each crew member of the craft commit an offence. (2) Every licensee or master of a foreign fishing craft who com mits an offence against subclause (1) is liable on summary con viction to a fine not exceeding $25,000. (3) Every crew member of a foreign fishing craft who commits an offence against subclause (1) is liable on summary conviction to a fine not exceeding $1,500. 39 Offence to obstruct or hinder constable or authorised officer A person who wilfully obstructs or hinders a constable or an authorised officer, or an assistant of a constable or an author ised officer, in exercising the powers conferred by section 12 of the Act commits an offence and is liable on summary con viction to a fine not exceeding $10,000. Security for release, and forfeiture, of foreign fishing craft, equipment, and fish 40 Application for release of detained foreign fishing craft (1) This regulation applies if a foreign fishing craft is seized and detained under section 12 of the Act. 19 http://www.legislation.govt.nz/pdflink.aspx?id=DLM20910 http://www.legislation.govt.nz/pdflink.aspx?id=DLM20910 r 41 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 2012/278 (2) The licensee, owner, or master of the craft may apply for the release of the craft on the provision of adequate security for the craft’s surrender to the Crown in the event that the craft is ordered to be forfeited. (3) An application for release must be made to— (a) the Administrator if the application is made before an information or a charge is laid against the licensee, owner, or master of the craft for the offence for which the craft has been detained; or (b) the court that will determine the proceedings if the ap plication is made— (i) after an information or a charge has been laid against the licensee, owner, or master of the craft for the offence for which the craft has been de tained; but (ii) before the proceedings have been determined. (4) In this regulation and regulations 41 and 42, foreign fishing craft (despite the definition of this term in section 2 of the Act) includes— (a) any equipment on board, or used by, the craft; and (b) any fish on board the craft. 41 Security for release of foreign fishing craft (1) On application in accordance with regulation 40, the Admin istrator or the court (as the case may be) must order the release of the foreign fishing craft on the execution, by any suitable person or persons approved by the Administrator or the court, of a bond that— (a) is in favour of Her Majesty the Queen; and (b) is of an amount that is not less than the value of the craft; and (c) is subject to the condition that, upon the forfeiture of the craft in accordance with the Act or these regulations, the person to whom the craft is released must immediately return the craft to the custody of the Administrator un less the Administrator advises the person in writing that the craft does not have to be returned; and (d) is subject to the bond conditions in regulation 42; and 20 http://www.legislation.govt.nz/pdflink.aspx?id=DLM20064 2012/278 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 r 43 (e) is subject to any other conditions the Administrator or the court may specify. (2) However, the bond may be of an amount that is less than the value of the craft if the Administrator or the court (as the case may be) is satisfied that there are special circumstances to jus tify an order to that effect. 42 When bond has effect (1) The amount specified in a bond in accordance with regulation 41 is recoverable in full, in any court of competent jurisdiction, as a debt due to Her Majesty the Queen jointly and severally by the persons by whom the bond is given, unless the persons prove that the bond is of no effect. (2) A bond is of no effect if— (a) an information or a charge is not laid against the li censee, owner, or master of the craft for the offence for which the craft was detained; or (b) the defendant is found not guilty of the information or charge; or (c) the defendant is convicted of the information or charge and the court does not order the forfeiture of the foreign fishing craft; or (d) the defendant is convicted of the information or charge and the court orders the forfeiture of the foreign fishing craft, and the defendant, within 14 days of the entry of the conviction, surrenders the foreign fishing craft to the Crown for forfeiture. (3) In all other circumstances, the bond remains in full force and effect. 43 Administrator may sell perishable seized property (1) If, in the opinion of the Administrator, any fish or other thing seized under section 12 of the Act may rot, spoil, deteriorate, or otherwise perish, the Administrator may dispose of it in the manner and for the price (if any) that the Administrator determines. 21 http://www.legislation.govt.nz/pdflink.aspx?id=DLM20910 r 44 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 2012/278 (2) Any proceeds from a sale under subclause (1) must be held in trust pending an order of the court made in accordance with regulation 45. 44 Court may order forfeiture of foreign fishing craft and equipment On the conviction of a licensee, an owner, or a master of a foreign fishing craft for an offence against regulation 32, 33, 34, 35, 37, or 38, the court may, in addition to any penalty that it may impose, order— (a) the immediate forfeiture to the Crown of— (i) the foreign fishing craft in which the offence was committed; and (ii) any equipment on board, or used by, the craft; or (b) the detention of the foreign fishing craft and of the equipment for a specified period, and the forfeiture to the Crown of those items if a fine imposed for the offence is not paid in that specified period. 45 Court may order forfeiture of fish or proceeds of sale On the conviction of a licensee, an owner, a master, or other crew member of a foreign fishing craft for an offence against regulation 32, 33, 34, 35, 37, or 38, the court may, in addition to any penalty that it may impose, order— (a) the immediate forfeiture to the Crown of— (i) any fish on board the craft; or (ii) any proceeds made from a sale of perishable property on board the craft in accordance with regulation 43; or (b) the detention of any fish on board the craft for a speci fied period, and the forfeiture to the Crown of the fish if a fine imposed for the offence is not paid in that speci fied period. Observer programme 46 Appointment of observers The Administrator may appoint any person to be an observer for the purposes of collecting reliable and accurate informa 22 2012/278 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 r 48 tion for fisheries research, fisheries management, and fisheries enforcement. 47 Observer may be placed on foreign fishing craft The Administrator may place 1 or more observers on any for eign fishing craft that is licensed to fish in the exclusive eco nomic zone to— (a) observe fishing that is done by the craft, and the tran shipment, transportation, and landing of fish, aquatic life, and seaweed; or (b) collect information on fisheries resources, fishing (in cluding catch and effort information), the effect of fish ing on the aquatic environment, and the transportation of fish, aquatic life, and seaweed. 48 Administrator to give notice of intention to place observer on foreign fishing craft (1) Before placing 1 or more observers on a foreign fishing craft, the Administrator must give the licensee, owner, or master of the craft reasonable notice of his or her intention to place a specified number of observers on the craft. (2) A person must not, after receiving the notice, cause or allow the craft to which the notice relates to put to sea without having on board the number of observers specified in the notice. (3) A person who breaches subclause (2) commits an offence and is liable on summary conviction to a fine not exceeding $10,000. (4) In this regulation, reasonable notice means— (a) written notice that specifies a date, not earlier than 5 days after the date of service of the notice, on or after which the craft is not to put to sea without having on board the specified number of observers; or (b) such other type or period of notice as may be agreed between the Administrator and the licensee, owner, or master of the craft. 23 r 49 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 2012/278 49 Powers of observers and obligations of persons on foreign fishing craft carrying observers (1) The licensee, owner, or master of a foreign fishing craft on which an observer is placed must allow the observer, at any reasonable time, having regard to the operations of the craft, to— (a) have access to the fishing gear and the storage and pro cessing facilities on the craft: (b) have access to any fish, aquatic life, or seaweed on the craft: (c) have access to the bridge and the navigation and com munications equipment of the craft: (d) have access to the logs and records of the craft: (e) receive and transmit messages and communicate with the shore and other vessels: (f) take, measure, and retain samples or whole specimens of any fish, aquatic life, or seaweed caught: (g) store samples and whole specimens on the craft, includ ing samples and whole specimens held in the craft’s freezing facilities. (2) A person on board a foreign fishing craft on which there is an observer commits an offence, and is liable on summary conviction to a fine not exceeding $10,000, who— (a) fails to provide reasonable assistance to enable the ob server to exercise his or her powers under subclause (1); or (b) hinders or prevents the observer exercising those powers. 50 Food and accommodation to be provided for observers (1) The licensee, owner, or master of a foreign fishing craft on which an observer is placed must provide food, accommoda tion, and access to any cooking and toilet facilities and amen ities to an approved standard and free of charge. (2) A person who breaches subclause (1) commits an offence and is liable on summary conviction to a fine not exceeding $10,000. 24 2012/278 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 r 51 51 Supervision by observers of transhipments, dumping of fish, and fishing outside exclusive economic zone (1) This regulation applies if an observer is on board a foreign fishing craft— (a) from which, or to which, any fish, aquatic life, or sea weed is transhipped in the exclusive economic zone; or (b) fromwhich any fish, aquatic life, or seaweed is returned to, or abandoned in, the sea in the exclusive economic zone; or (c) that is taking, or has taken, fish, aquatic life, or seaweed outside the exclusive economic zone. (2) The master of the craft (or, in the case of transhipment, the master of each vessel) must provide the information that the observer requires, and must allow the observer to carry out inspections (including sampling and measuring) of the ves sels, any fish, aquatic life, or seaweed taken, processed, tran shipped, or landed, any records, and any documents that the observer requires, for the purpose of— (a) observing the transhipment, or return to or abandon ment in the sea, of any fish, aquatic life, or seaweed; or (b) observing the fishing activities of the vessel and the landing and disposal of its catch; or (c) taking, measuring, and retaining samples or whole spe cimens of any fish, aquatic life, or seaweed caught. (3) An observer may take and make copies of the records, docu ments, or information the observer requires for the purposes of subclause (2). (4) An observer may store in the craft’s freezing facilities the sam ples and whole specimens of any fish, aquatic life, or seaweed the observer requires for the purposes of subclause (2). (5) A master of a craft who breaches or fails to comply with sub clause (2) commits an offence and is liable on summary con viction to a fine not exceeding $10,000. 25 r 52 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 2012/278 Miscellaneous matters 52 Administrator must keep registers (1) The Administrator must establish and maintain the registers that the Administrator considers necessary in order to accur ately record all— (a) licences granted under these regulations; and (b) vessel days purchased in accordance with these regula tions, and the price paid for them; and (c) access charges paid in accordance with these regula tions, and the price paid for them; and (d) fishing limits specified by the Administrator; and (e) other related or relevantmatters under these regulations. (2) A register may be— (a) in electronic form; or (b) in any other form that the Administrator considers ap propriate. (3) All registers must be open to inspection by the public during ordinary office hours. 53 Designation and appointment of authorised officers For the purposes of the Act and these regulations,— (a) the following persons are designated as authorised offi cers: (i) the officer in command of any vessel or aircraft of the Armed Forces of New Zealand: (ii) themaster of anyNewZealandGovernment ship: (iii) a fishery officer as defined in section 2(1) of the Fisheries Act 1996; and (b) the Administrator may appoint any other person as an authorised officer by written notice given to the person. Savings, transitional, revocation, and amendment provisions 54 Existing licences saved A licence that is granted and issued under the Tokelau (Ex clusive Economic Zone) Fishing Regulations 1988 and that is valid immediately before the date on which these regulations 26 http://www.legislation.govt.nz/pdflink.aspx?id=DLM20058 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394199 http://www.legislation.govt.nz/pdflink.aspx?id=DLM127303 http://www.legislation.govt.nz/pdflink.aspx?id=DLM127303 2012/278 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 r 58 come into force is unaffected by the coming into force of these regulations, except to the extent set out in regulation 55(4). 55 Tokelau (Exclusive Economic Zone) Fishing Regulations 1988 continue to apply to existing licences (1) The Tokelau (Exclusive Economic Zone) Fishing Regulations 1988 (except regulation 8) continue in full effect to the extent necessary for the proper administration and completion of all matters under those regulations relating to an existing licence. (2) All obligations or requirements in relation to an existing li cence continue to apply, even if that obligation or requirement arises on or after the date on which these regulations come into force. (3) Any action that is taken in relation to an existing licence must be taken under the Tokelau (Exclusive Economic Zone) Fish ing Regulations 1988, even if that action is taken on or after the date on which these regulations come into force. (4) However, a renewal of an existing licence must be done in accordance with these regulations. (5) This regulation applies despite regulation 56. (6) In this regulation, existing licence means a licence that is granted and issued under the Tokelau (Exclusive Economic Zone) Fishing Regulations 1988. 56 Revocation The Tokelau (Exclusive Economic Zone) Fishing Regulations 1988 (SR 1988/262) are revoked. 57 Consequential amendments to these regulations relating to Criminal Procedure Act 2011 These regulations are amended as set out in the Schedule on the commencement date (within the meaning of section 394 of the Criminal Procedure Act 2011). 58 Tokelau Administration Regulations 1993 amended (1) This regulation amends the Tokelau Administration Regula tions 1993. 27 http://www.legislation.govt.nz/pdflink.aspx?id=DLM127344 http://www.legislation.govt.nz/pdflink.aspx?id=DLM127303 http://www.legislation.govt.nz/pdflink.aspx?id=DLM127303 http://www.legislation.govt.nz/pdflink.aspx?id=DLM127303 http://www.legislation.govt.nz/pdflink.aspx?id=DLM127303 http://www.legislation.govt.nz/pdflink.aspx?id=DLM127303 http://www.legislation.govt.nz/pdflink.aspx?id=DLM127303 http://www.legislation.govt.nz/pdflink.aspx?id=DLM3865811 http://www.legislation.govt.nz/pdflink.aspx?id=DLM180668 http://www.legislation.govt.nz/pdflink.aspx?id=DLM180668 r 59 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 2012/278 (2) In regulation 7, replace “Council of Faipule” with “Council for the Ongoing Government” in each place. 59 Updated references Unless the context otherwise requires, all references in an en actment or document to the Council of Faipule must be read as a reference to the Council for the Ongoing Government. 28 http://www.legislation.govt.nz/pdflink.aspx?id=DLM180684 2012/278 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 Schedule Schedule r 57 Consequential amendments to these regulations relating to Criminal Procedure Act 2011 Regulation 31 In regulation 31(2), delete “summary”. Regulation 32 In regulation 32(2), delete “summary”. Regulation 33 In regulation 33(3), delete “summary”. Regulation 34 In regulation 34(3), delete “summary”. Regulation 35 In regulation 35(3), delete “summary”. Regulation 37 In regulation 37(2) and (3), delete “summary”. Regulation 38 In regulation 38(2) and (3), delete “summary”. Regulation 39 In regulation 39, delete “summary”. Regulation 40 In regulation 40(3)(a), replace “an information or a charge is laid” with “a charging document is filed”. In regulation 40(3)(b)(i), replace “an information or a charge has been laid” with “a charging document has been filed”. 29 Explanatory note Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 2012/278 Regulation 42 In regulation 42(2)(a), replace “an information or a charge is not laid” with “a charging document is not filed”. In regulation 42(2)(b), (c), and (d), delete “information or”. Regulation 48 In regulation 48(3), delete “summary”. Regulation 49 In regulation 49(2), delete “summary”. Regulation 50 In regulation 50(2), delete “summary”. Regulation 51 In regulation 51(5), delete “summary”. Rebecca Kitteridge, Clerk of the Executive Council. Explanatory note This note is not part of the regulations, but is intended to indicate their general effect. These regulations, which come into force on the 28th day after the date of their notification in the Gazette, replace the Tokelau (Exclu sive Economic Zone) Fishing Regulations 1988 (the 1988 regula tions). They regulate fishing by foreign fishing craft in the exclusive economic zone of Tokelau. These regulations provide that a foreign fishing craft can only be used for fishing in Tokelau’s exclusive economic zone if it holds a valid licence. They then specify how an application can be made for a licence, when and how a licence may be issued to a craft, conditions that apply to a licence, when a licencemay be suspended or cancelled, 30 http://www.legislation.govt.nz/pdflink.aspx?id=DLM127303 http://www.legislation.govt.nz/pdflink.aspx?id=DLM127303 2012/278 Tokelau (Exclusive Economic Zone) Fishing Regulations 2012 Explanatory note and associated matters. They also create various offences and set out the associated penalties. The main differences between these regulations and the 1988 regu lations include the following: • the Administrator is specifically appointed as the licensing au thority for the purposes of these regulations; and • the circumstances in which the Administrator must seek the views of the General Fono (or Council for the Ongoing Gov ernment) before taking specified actions are set out; and • separate licensing regimes are established for vessels depend ing upon whether they are purse seine vessels, non-purse seine vessels, or vessels that have been issued with a regional fishery licence in accordance with the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Govern ment of the United States of America done at Port Moresby on 2 April 1987; and • the bonding and forfeiture provisions are modernised; and • a process is established for the appointment of observers; and • the range of offences is expanded; and • certain definitions and procedures are aligned with those in the Fisheries Act 1996. Issued under the authority of the Acts and Regulations Publication Act 1989. Date of notification in Gazette: 27 September 2012. These regulations are administered by the Ministry of Foreign Affairs and Trade. 12 Wellington, New Zealand: Published under the authority of the New Zealand Government—2012 31 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM195097