2012 Offshore Fisheries Management Act

Section 2. Interpretation: “serious violation” means (a) fishing without a valid licence, authorisation, fishing right or permit as required under this Decree; (b) failing to maintain accurate records of catch and catch-related data, as required by this Decree or a licence issued pursuant to this Decree, or (c) serious misreporting of catch contrary to this Decree or a licence issued pursuant to this Decree; (d) fishing in a closed area, fishing during a closed season or fishing without, or after attainment of, a quota established in the fisheries waters or by an applicable sub-regional or regional fisheries management organisation or arrangement; (e) directed fishing for a stock which is subject to a moratorium or for which fishing is prohibited; (f) using prohibited fishing gear; (g) falsifying or concealing the markings, identity or registration of a fishing vessel; (h) concealing, tampering with or disposing of evidence relating to an investigation or anticipated investigation; (i) multiple violations which together constitute a serious disregard of conservation andmanagement measures; (j) sexual harassment; or (k) such other violations as may be prescribed;

The Minister, Permanent Secretary or Director, as appropriate, when performing functions or exercising powers under this Decree, shall— (f) adopt measures to minimise waste, discards, catch by lost or abandoned gear, pollution originating from fishing vessels, catch of non-target species and impacts on associated or dependent species, in particular endangered species and promote the development and use of selective, environmentally safe and cost- effective fishing gear and techniques;

(1) No person shall destroy, throw overboard, conceal or abandon any fish, fish product, fishing gear, net or other fish appliance, log, return, record, document, electric shock device, explosive, poison or other noxious substance, or any other thing with intent to avoid seizure or the detection of an offense against this Decree.

(1) Any person who— (a) permits to be used, uses or attempts to use any explosive, firearm, poison, other noxious substance or other prohibited item; or (b) permits to be carried, carries or has in his or her possession or control any explosive, firearm, poison, or other noxious substance, for the purpose of killing, stunning, disabling, catching or in any way rendering fish to be easily caught, commits an offense and shall be liable on conviction to a fine not less than $25,000 and not more than $50,000 (4) Any person who lands, sells or receives fish taken or caught using a prohibited item or prohibited fishing method, commits an offense and is liable on conviction to a fine not less than $25,000 and not more than $50,000.

(1) A person shall not use a Fiji fishing vessel for fishing or related activities—(a)in the fisheries waters of another State except in accordance with the laws of that State and an authorisation issued under section 32; (b) in an area subject to a treaty or multilateral access agreement except in accordance with that treaty or agreement; (c) on the high seas except in accordance with an authorisation issued under section 32; or (d) in an area subject to an international conservation and management measure except in accordance with such measure.

(1) Notwithstanding subsection (3), this section applies to all persons, vessels, fishing related and other activities to which this Act has application. (2) Subject to subsection (1), no person shall, within Fiji or in Fiji fisheries waters, on their own account or any other capacity—(a)cause or permit a person acting on his or her behalf; or (b)use or permit a vessel to engage in fishing or related activity, to take or to import, export, land, transport, sell, receive, acquire, buy any fish or fish product taken, possessed, transported or sold in violation of any law or regulation of another State or of international conservation and management measures. (3) This section does not apply to fish taken on the high seas contrary to the law of another State where Fiji does not recognise the jurisdiction of that State over those fish. (4) Any person who contravenes subsection (2) commits an offense and upon conviction shall be liable for a fine not less than $500,000 and not more than $1 million or to a term of imprisonment not exceeding 6 months, or to both. (5) Where an international agreement with another State provides for a fine, penalty or other determination or any portion of it to be remitted to that State upon conviction or other process pursuant to subsection (2), such remittance shall be made after all costs and expenses incurred by the State have been deducted.

(2) Without limiting the generality of subsection (1), Regulations made pursuant to this section may provide for all or any of the following— (l) the licensing, control and use of fish aggregating devices and the rights to the aggregated fish, prescribing times and the minimum distances from such devices that any vessel may fish around; (s) regulating or prohibiting the use of fish aggregating devices;

(1) This section establishes the Fiji Observer Programme. (2) The Fiji Observers Programme shall be responsible for collecting, recording and reporting reliable and accurate information for scientific, management, and compliance purposes including— (a) the species, quantity, size, age and condition of fish taken; (b) the methods used and areas and depths at which fish are taken; (c) the effects of fishing methods on fish and the environment; (d) all aspects of the operation of any vessel; (e) processing, transportation, transhipment, storage or disposal of any fish; (f) monitoring the implementation of management measures and applicable international conservation and management measures; or (g) any other matter that may assist the Permanent Secretary to obtain, analyse, or verify information regarding fisheries for scientific, management and compliance purposes.

(1) The Permanent Secretary may, by notice published in the Gazette, designate persons to act as observers on vessels issued with valid licences or authorisations pursuant to this Act or any regulation made under it. (2) The Permanent Secretary may, by notice published in the Gazette, designate nationals of other States to be observers for the purposes of this Act. (3) Notwithstanding subsection (1), observers may be designated in accordance with any cooperation agreement to which Fiji is party and shall be so designated provided that such agreement enables the reciprocal recognition of observers. (4) Persons designated in accordance with subsections (2) and (3) who are not Fijian citizens shall be subject to the provisions of this Act while carrying out their duties and functions.

(1) Observers shall be permitted to board any vessel issued with a valid licence or authorisation pursuant to this Act and remain on such vessel for the purpose of exercising the observers’ functions stipulated under section 68. (2) The operator, master, and each member of the crew of such vessel shall allow and assist an observer to—(a) board and remain on such vessel for the purpose of carrying out his or her duties and functions, at such time and place as the Permanent Secretary may require; (b) have full access to and the use of facilities and equipment on board the vessel which the observer may determine necessary to carry out his or her duties, including— (i) full access to the bridge, fish on board and areas which may be used to hold, process, weigh and store fish; (ii) full access to the vessel’s records including its log and documentation for the purpose of records inspection and copying; (iii) full access to fishing gear on board; (iv) full access to navigation equipment and radios; (v) take and remove from the vessel reasonable samples for the purposes of scientific investigation and other relevant information; (vi) take photographs of the fishing operations, including fish, fishing gear, equipment, charts and records, and remove from the vessel such photographs or film as he or she may have taken or used on board the vessel; (vii) send or receive messages by means of the vessel’s communications equipment; and (viii)gather any other information relating to fisheries in Fiji fisheries waters or other areas as may be authorised by licence or authorisation; (c) carry out the observers’ duties safely; and (d) disembark at such time and place as may be determined by the Permanent Secretary or in accordance with an access agreement. (3) The operator shall provide the observer, while on board the vessel, at no expense to the State with food, accommodation, safety equipment and medical facilities equivalent to officers or such reasonable standard as may be acceptable to the Permanent Secretary. (4) In addition to the requirements in subsection (2), the Permanent Secretary may require the operator to pay in full the following costs of the authorised observer—(a) travel costs to and from the vessel; (b) such salary as may be notified by the Permanent Secretary, being the full amount of such salary; and (c)f ull insurance coverage. (5) Any operator and master of any vessel with a valid licence or authorisation issued in accordance with this Act shall allow and assist any observer to have full access to any place within Fiji or elsewhere where fish taken in Fiji fisheries waters is unloaded or transhipped, to remove samples and to gather any information relating to fisheries in Fiji fisheries waters. (6) Any observer who performs duties in areas beyond Fiji fisheries waters in accordance with this Act, any international agreement, fisheries management agreement or international conservation and management measures, shall, unless the contrary is provided, continue to be subject to all provisions of this Act, and all responsibilities and duties of operators, crew members or other relevant persons to such observer or port samplers, under this Act shall be applicable.

Any observer designated under this section, who does any act under this Act, or omits to do any act required by this Act, shall not be under any civil or criminal liability as a result of that act or omission on the ground of want of jurisdiction or mistake of law or fact, or any other ground, unless he or she has not acted, or omitted to act, in good faith.

(1) The operator, master, crew member of any fishing vessel, driver of any vehicle or pilot and crew of any aircraft shall immediately comply with every instruction or direction given by an authorised officer or observer and facilitate safe boarding, entry, exit and inspection of the vessel, vehicle or aircraft and any fishing gear, equipment, records, fish and fish products. (2) The operator, master, and each crew member of a vessel, driver of a vehicle and pilot and crew of an aircraft shall ensure the safety of an authorised officer or observer as appropriate in the performance of his duties. (3) Any person who contravenes subsections (1) or (2), or—(a)assaults, obstructs, resists, delays, refuses boarding to, intimidates or otherwise interferes with an authorised officer or observer in the performance of his duties; (b) incites or encourages any other person to assault, resist or obstructs any authorised officer or observer while in the execution of his powers or duties, or any person lawfully acting under the officer’s orders or in his or her aid; (c) uses threatening language or behaves in a threatening or insulting manner or uses abusive language or insulting gestures towards any authorised officer or observer while in the execution of his powers or duties, or any person lawfully acting under an authorised officer’s orders or in his or her aid; (d) fails to comply with the lawful requirements or any authorised officer or observer; (e) furnishes to any authorised officer or observer any particulars which are false or misleading in any material respect; (f) impersonates or falsely represents himself or herself to be an authorised officer or observer, or who falsely represents himself or herself to be a person lawfully acting under an authorised officer’s orders or in his or her aid; (g) resists lawful arrest for any act prohibited by this Act; or (h) is in breach of any other duty to an authorised officer or observer under this Act, commits an offense. (4) For the purpose of subsection (3), any person who does not allow any authorised officer, or any person acting under his or her orders or in his or her aid, or an observer to exercise any of the powers conferred on such person by this Act shall be deemed to be obstructing that officer or person. (5) A violation of subsection (3) shall constitute a serious violation. (6) Any person who, being a master, owner, charterer, agent, or a company established under the laws of Fiji which owns, partly owns or controls a fishing vessel which transports an authorised officer or observer outside the Fiji fisheries waters and causes him or her to disembark outside the jurisdiction of Fiji, shall be liable for all costs of repatriation including board and lodging while out of Fiji and direct transportation to Fiji. (7) Subject to subsection (5), any person who commits an offense against this section shall be liable on conviction to a fine not less than $20,000 and not more than $50,000.

An authorised officer or observer when exercising any of the powers conferred on him or her by this Act shall on request produce identification to show he or she is an authorised officer or observer.

(1) Unless otherwise prescribed, the Director shall authorise any landing, transhipment, bunkering or provisioning involving any vessel in Fiji fisheries waters or in a port of Fiji in accordance with any applicable access agreement, fisheries management agreement, and any requirement which may be prescribed. (2) The Director shall attach such conditions as may be prescribed and may attach additional conditions as he or she thinks fit which are consistent to any condition which may be prescribed, to any authorisation granted under subsection (1). (3) The master, owner, charterer or operator of the vessel authorised in accordance with this section shall comply with all applicable laws of Fiji and any conditions of such authorisation. (4) The Director may suspend or revoke such authorisation if there is failure to comply with the conditions of the authorisation or the requirements of this Decree. (5) Any person who undertakes any landing, transhipment, bunkering or provisioning activity in respect of a fishing vessel without an authorisation issued pursuant to this section,

(1) A person shall not use a Fiji fishing vessel for fishing or related activities— (a) in the fisheries waters of another State except in accordance with the laws of that State and an authorisation issued under section 34 of this Decree; (b) in an area subject to a treaty or multilateral access agreement except in accordance with that treaty or agreement; (c) on the high seas except in accordance with an authorisation issued under section 34; or (d) in an area subject to an international conservation and management measure except in accordance with such measure.

The Permanent Secretary may refuse an application for a licence on any of the following grounds— (c) an owner or operator of the vessel has contravened, or the vessel has been used for the contravention of conservation and management measures adopted by a regional or sub-regional fisheries management organisation to which Fiji is a member; (d) an owner or operator of the vessel has contravened, or the vessel has been used in the contravention of a treaty or access agreement to which Fiji is party; (h) granting of the licence would conflict or would be inconsistent with the requirements of this Decree, an applicable access agreement, fisheries management agreement, Fisheries Management Plan or any international conservation and management measure binding on Fiji.

The Permanent Secretary may refuse an application for a licence on any of the following grounds— (a) the owner or operator is the subject of proceedings under bankruptcy laws of any jurisdiction and reasonable financial assurances have not been provided; (b) failure to satisfy a judgment or other determination for a contravention of this Decree or an access agreement by the owner or operator of the vessel in respect of which an application for a licence has been made until such time as the judgment or other determination has been made; (c) an owner or operator of the vessel has contravened, or the vessel has been used for the contravention of conservation and management measures adopted by a regional or sub-regional fisheries management organisation to which Fiji is a member; (d) an owner or operator of the vessel has contravened, or the vessel has been used in the contravention of a treaty or access agreement to which Fiji is party; (e) an owner or operator of the vessel has committed, or the vessel has been used to commit an offense against the laws of Fiji; (f) the fishing vessel in respect of which the application is made does not have good standing on the regional register; (g) the previous offending history of the vessel’s owner, operator or master; (h) granting of the licence would conflict or would be inconsistent with the requirements of this Decree, an applicable access agreement, fisheries management agreement, Fisheries Management Plan or any international conservation and management measure binding on Fiji; or (i) in accordance with such other grounds as may be prescribed by the Regulations.

(1) The Permanent Secretary may suspend or cancel a licence or authorisation if— (a) it is necessary to do so in order to give effect to any licensing programme or conservation measure specified in or implemented in accordance with a Fisheries Management Plan; (b) a vessel is used in contravention of this Decree, condition of the licence or any applicable treaty or access agreement; (c) payment has not been made for any charge, penalty, fine or compensation required under this Decree; (d) good standing has been withdrawn in respect to the licenced or authorised vessel where such good standing is a condition of licence issuance; or (e) the Minister or Permanent Secretary is required or authorised to do so in accordance with the provisions of any access agreement entered into under this Decree.

(7) Anyone convicted of an offense under this section shall have the applicable licence or authorisation cancelled in addition to other stated penalties.

(6) An operator convicted of an offense under this section shall have the applicable licence cancelled in addition to other penalties, and no further licence shall be issued for last least one year from the time the offense was committed.

(1) The operator of each fishing vessel licensed or authorised to fish pursuant to this Decree shall be required, as a condition of its licence or authorisation, to install, maintain, operate, and consent to the monitoring during the licence period, of an approved mobile transceiver unit (MTU) at all times while in Fiji fisheries waters and beyond Fiji fisheries waters or such other area as may be agreed or designated, and in accordance with— (a) the manufacturer’s specifications and operating instructions; and (b) such other requirements as may be prescribed.

(2) The operator of each vessel referred to in subsection (1) shall ensure that— (a) no person tampers or interferes with the MTU and that the MTU is not altered, damaged, disabled or otherwise interfered with; (b) the MTU is not moved from the required or agreed installed position or removed without the prior written permission of the Director; (c) the MTU is switched on and is operational at all times when the vessel is within Fiji fisheries waters and beyond Fiji fisheries waters during the period of validity of the licence or authorisation; (d) upon notification by the Director that the vessel’s MTU has failed to transmit, the directives of the Permanent Secretary are complied with until such time that the vessel’s MTU is functioning properly; and (e) the MTU is registered as the Director may direct or as may be prescribed, at the operator’s expense.

(3) The operator of each vessel referred to in subsection (1) or his or her authorised agent, upon notification by the licensing country of appropriate authority that the vessel’s MTU has failed to report, shall ensure that reports containing the vessel’s name, call sign, position (expressed in latitude and longitude to minutes of arc), and date and time for the report, are communicated to a delegated authority.

(4) Such communication must be made at intervals of 4 hours or such shorter period as specified by the delegated authority, commencing from the time of notification of failure of the MTU