ANNEX C. STRENGTHENING NATIONAL LEGISLATION RELEVANT TO MCS

One of the most important activities in strengthening an MCS system is to review national (domestic) legislation to ensure that it provides the necessary legal mechanisms and appropriate powers to facilitate the cost-effective implementation of MCS. In reviewing legislation, it is important to review the regulatory system as a whole. For example, some of the relevant provisions may not be included in an Act of parliament but may be included in regulations or even in the terms and conditions of licences.

The questions listed in the following table give an indication of some of the issues that are useful to consider when reviewing national regulatory systems in order to strengthen MCS frameworks. It is not an exhaustive checklist. Furthermore, it is important to appreciate that deciding what measures are appropriate to adopt in national legislation will depend on a variety of factors including: the legal tradition of the State concerned, the particular circumstances of the fisheries management in that State, the international or regional agreements to which that State is a party, and whether or not these agreements have entered into force.

The references cited in the right column of the table are intended to direct fisheries administrators to relevant articles in recent international documents. The CCRF is voluntary and neither the FAO Compliance Agreement (CA) nor the UN Fish Stocks Agreement (UNFSA) is yet in force. Even when these two Agreements enter into force, they will not be applicable in many situations. This is because the CA relates to fishing on the high seas whilst the UNFSA applies to straddling and highly migratory fish stocks. Provisions of the CCRF and the two Agreements nevertheless serve as useful guides on how national regulatory systems can be strengthened to facilitate and develop MCS.

Table C1. Reviewing national regulatory systems

ISSUES TO BE CONSIDERED	REFERENCES AND NOTES
1. Scope of legislation
1.1. Is the scope of the relevant legislation (which may be contained in more than one Act) sufficiently wide to regulate the activities listed below?
(a) fishing related activities such as transshipment and bunkering, both within the maritime zones of the coastal State and on the high seas;	UNFSA Article 18(3)(f) and (h).
(b) the activities of mother ships and fishing support vessels;	CA Article 1(a). See also the distinction between fishing operations and fishing activities in the CCRF.
(c) the fishing activities of national fishing vessels even when beyond the area of jurisdiction of the State;	CA Article III generally, UNFSA Article 18.
(d) the fishing activities of national fishing vessels of less than 24 metres in length;	CA Article III(1)(b).
(e) the activities of masters, officers and crew of national fishing vessels;
(f) the taking of action to enforce compliance by national and foreign vessels with conservation and management measures applicable to the high seas and to areas subject to regional management regimes;	UNFSA Part VI generally.
(g) measures to minimize pollution and waste.	UNFSA Article 5(f).
2. Collection of information
2.1. Are both national fishing vessels (wherever they operate) and foreign fishing vessels operating within the area of jurisdiction of the State, under a clear and legally enforceable duty to provide information relating to the vessel and its fishing activities?	CA Article III(7). This should include information regarding operations, catches, landings and mother ships and support vessels.
2.2. Must fishing vessels and fishing gear be marked for identification in accordance with a uniform and internationally recognized marking system such as the FAO Standard Specifications for the Marking and Identification of Fishing Vessels?	See UNFSA Article 18 which specifies duties of the flag State. CA Article III(2).
2.3. Records of fishing vessels
a) Is the fisheries administration under a duty to maintain a record of fishing vessels entitled to fly the national flag and authorized to be used for fishing on the high seas?	See CA Article IV and Article VI. Article VI lists the information to be entered in the records in respect of each fishing vessel, as well as other information which should be recorded and transmitted to FAO to the extent practicable.
b) Are fishers under an obligation to provide vessel-related data for standardizing fleet composition and vessel fishing power and for converting between different measures of effort?	UNFSA Annex 1. This would include: vessel identification, flag and port of registry; vessel type; vessel specifications (e.g. material of construction, date built, registered length, gross registered tonnage, power of main engines, hold capacity and catch storage methods); fishing gear description; and position fixing aides.
c) Is there a requirement to promptly inform the fisheries administration of any changes to the information recorded?	Parties to the CA are required to promptly inform FAO of certain changes to records of fishing vessels (Article VI.5). This would include information on: the scrapping, decommissioning or loss of a fishing vessel, changes in ownership etc.
2.4. Reporting
a) Must national vessels/foreign vessels in areas under the jurisdiction of the State maintain records and report promptly on: vessel position, entry and exit from defined maritime zones, catches of target and non-target species, fishing effort and other relevant fisheries data in accordance with subregional, regional and global standards for collection of such data?	UNFSA Article 18(3)(e).
b) Do the reporting requirements allow appropriate data to be collected and compiled in a manner that enables statistically meaningful analysis for the purpose of fishery conservation and resource management?
c) Do data reporting requirements include: catching and fishing effort statistics; information on non-target and associated and dependent species, time series of catch and effort statistics by fisheries and fleets; total catch in number and/or nominal weight by species; discard statistics; effort statistics; fishing location, date and time fished and other appropriate statistics; composition of the catch according to length, weight and sex?	UNFSA Annex 1.
2.5. Verification
a) Is the national fisheries administration under an obligation to verify fisheries data, either independently or in conjunction with subregional or regional fisheries management organizations?	CCRF 7.7.4.
b) Is failing to maintain an accurate record or failing to report or misreporting an offence that attracts adequate penalties to deter the offence?
c) Is it a legal requirement for national and foreign fishing vessels to install automatic location communicators (ALCs) or vessel tracking units (VTUs)?	UNFSA Article 18(3)(g)(iii) and Annex 1(6)(a). See also CCRF Article 7.7.3.
d) Are fishing vessels prohibited from being supported by other vessels within the maritime zones of the coastal State (other than for safety purposes) unless the latter vessels are equipped with ALCs?	Note: Some coastal States require foreign fishing vessels to turn on their ALCs well before entering the EEZ but it is doubtful whether this can be enforced as a matter of international law at this stage.
e) Is it a requirement that ALCs are kept in good working order at all times and are turned on at all times in designated fishing areas?
f) Is it an offence to destroy, damage, render inoperative or otherwise interfere with the operation of an ALC?
3. Information, exchange and dissemination
3.1. Data protection	UNFSA Article 10(f) & Annex 1 Articles 1(1) 7(1)
a) Are there legally enforceable provisions protecting the confidentiality of commercially confidential data, including requirements to restrict access to it?	CA Articles VI(8)(a)
b) Are there sanctions for the unauthorized disclosure of confidential information?	CCRF Articles 7.4.4, 7.4.7 &12.4
3.2. Information exchange
a) Is the fisheries authority empowered to exchange information and data relevant to specific fishing vessels and to management and conservation measures (both in respect of areas under national jurisdiction, within the region and on the high seas), to other states, regional fisheries management bodies or arrangements and international organizations?	UNFSA Article 14(1) and Annex 1(1).
b) Does the legislation empower the fisheries administration to publish and disseminate fisheries data and information in an aggregated form?
c) Is the national fisheries administration under an obligation to exchange relevant information, including evidentiary material, with other States, regional fisheries bodies and international organizations (e.g. FAO) in accordance with applicable international agreements?	CA Articles V and VI.
4. Management plans
4.1. Are the fisheries authorities under a legal obligation to prepare appropriate fisheries management and conservation plans based on best scientific evidence and including consideration of the interactions between the use of the particular fisheries and the wider environment?	CCRF 7.1.1.
4.2. Are the authorities responsible for preparing coastal management plans legally obliged to take account of fisheries management objectives and to integrate these into the coastal management plans?
4.3. Does the legislation prohibit the granting of authorizations for fishing or related activities which would undermine the effectiveness of national, regional or international fisheries, management or conservation plans?
5. Licensing of fishing
5.1. Flag State responsibilities
a) Are national vessels prohibited from (a) fishing or undertaking fishing-related activities on the high seas without authorization from the flag State, and (b) contravening the terms of the authorization?	CA Article III(2) and UNFSA Article 18(3)(b)(ii).
b) Are national vessels fishing on the high seas obliged to carry their authorization on board and to produce it for inspection by duly authorized persons?	UNFSA Article 18(3)(b)(iii).
c) Can an authorization to fish on the high seas be suspended on the basis of extra-jurisdictional infringements of international conservation and management measures?	CA Article III(5).
d) Are national vessels prohibited from fishing in areas under the jurisdiction of other States without authorization by the coastal State concerned?	UNFSA Article 18(3)(b)(iv).
5.2. Coastal State responsibilities
a) Is it prohibited to issue fishing authorizations if the vessel is not registered in a national or regional or fishing vessel record?
b) Is it prohibited to grant access to foreign fishing vessels unless an access agreement has been concluded with the flag State which requires it to ensure that its vessels comply with the terms of the access agreement and with the laws of the coastal State?
c) Are the conditions imposed on licensed fishing vessels appropriate to promote proper fishing conduct and compliance with conservation and management measures?
d) Have minimum terms and conditions (MTCs) for foreign fishing vessel access been developed and are these harmonised with the requirements of other States in the region?
e) Can fishing authorizations be suspended, amended or revoked to protect the environment or a fish stock?
6. Enforcement powers
6.1. Authorized officers	See UNFSA Articles 21 and 22.
a) Does the legislation make it clear who is authorized to enforce fisheries legislation (e.g. fisheries officers, police, navy, environmental conservation officials, etc)?
b) Does the law provide for the appointment of individuals from coast-dependent communities to monitor compliance with fisheries laws (usually without enforcement powers)?
c) Are inspectors and observers required to carry appropriate identification?
d) Must inspection vessels be clearly marked to indicate that they are in government service?
e) Does the legislation clearly specify the pre-conditions for the use of enforcement powers in various maritime zones?	e.g. In some circumstances clear grounds are required, in others reasonable grounds etc.
f) Are fisheries and naval officers empowered to engage in hot pursuit?	See UNCLOS Section 111.
6.2. Inspection
a) Does the law facilitate inspections (e.g. by requiring landings to take place only at specified landing stations and transshipments in designated areas)?
b) Does legislation permit the establishment of a system of observers on fishing vessels and grant such observers appropriate powers and protection?
c) Does the legislation make it clear under what circumstances routine inspections (i.e. where there is not necessarily any apprehension of non-compliance) may be conducted within ports and at offshore installations, within internal waters, the territorial sea and the EEZ?
d) Are observers aboard foreign fishing vessels subject to the jurisdiction of the fisheries administration of the coastal State while that vessel is within the maritime zones of the coastal State?
e) Are inspectors granted appropriate powers to inspect not only vessels, but also documents, log books, catches, equipment etc.?
6.3. Boarding
a) Are the preconditions which must be met before a vessel can be boarded in each maritime zone, clearly specified?
b) Have basic procedures for boarding and inspection been established?
c) Are the masters of national vessels under an obligation to accept and facilitate prompt and safe boarding by inspectors of other States in appropriate circumstances, and to facilitate their safe disembarkation?
6.4. Powers of entry, search, seizure and arrest
a) Do authorized officers enjoy adequate powers of search, seizure and arrest to facilitate effective enforcement, including powers in respect of premises where fish and fish products are processed?
b) Is provision made for releasing foreign fishing vessels and crews arrested in the EEZ on the posting of a reasonable bond or other security?	See UNCLOS Article 73(2).
c) Do authorized officers have the power to inspect the vessel, its licence, gear, equipment, records, fish products and any relevant documents necessary to verify compliance with conservation and management measures?
d) Is the master and the crew of the vessel under a duty to cooperate with and assist in the inspection of a vessel?
e) Is it an offence to obstruct, intimidate or interfere with authorized officers (including fisheries officers, officers enforcing environmental laws, observers on board vessels and individuals from coastal communities participating in coastal MCS programmes) in the performance of their duties?
f) Is it an offence to fail to comply with a lawful instruction of a fisheries officer?
7. Offences
7.1. Are landings and transshipments prohibited where it has been established that the catch has been taken in a manner which undermines the effectiveness of subregional, regional or global conservation and management measures on the high seas?	UNFSA Article 23(3).
7.2. Is it an offence to land, sell, receive or possess illegally caught fish?
7.3. Can the master, owner and charterer of a fishing vessel which acts unlawfully be convicted of the offence?
8. Evidentiary provisions
8.1. Are offences formulated in a manner that facilitates enforcement? (E.g. prohibiting the possession of illegally caught catch as well as illegal catching and demarcating areas from which all fishing vessels are excluded.)
8.2. Are ancillary activities that facilitate IUU fishing prohibited (e.g. the possession or transportation of illegal fishing gear)?
8.3. Will information and data from ALCs and satellite VMS systems be admissible in court?	Answering this question will depend on the procedural rules of the legal system in question but problems are often encountered because the court may not be prepared to accept the accuracy of new technologies without expert evidence.
8.4. Does the law include appropriate presumptions of fact and law which will be regarded as true unless the contrary is proven, to facilitate securing convictions?	Examples of such presumptions include: (a) that the ALC is accurate and functioning correctly; (b) that information obtained by the use of an ALC comes from the vessel identified by it, is accurately relayed or transferred, and is given by the master, owner, operator or charterer of the fishing vessel; and (c) that a vessel found fishing without appropriate authorization is undermining the relevant conservation and management measures in that area.
8.5. Do the evidentiary provisions in the law facilitate proving the essential facts of the charge without requiring the presence in court of a variety of experts to testify on technical points?	For example, the law may provide that instead of bringing VMS operators to court on every occasion, evidence may be given by way of certificate to the effect that the person was competent to read any printout or visual display, the date and time the VMS information was obtained or ascertained, the name and call sign of the vehicle on which the ALC is or was located, and declaration that there was no apparent malfunctioning in the ALC or other equipment and that the appropriate reading was done at the same time that the offence was being committed.
8.6. Is it an offence to destroy evidence and to throw fish, gear, log books, etc. overboard when being pursued or when about to be boarded?
9. Penalties
9.1. Does the law provide for appropriate administrative penalties in addition to criminal penalties?
9.2. Does the law allow for the compounding of offences (i.e. the payment of specified fines in order to avoid prosecution)?
9.3. Are the sanctions sufficiently severe to be effective in securing compliance and to discourage violations wherever they occur?	CA Article III(8). CCRF Article 8.2.7.
9.4. Will convicted offenders be deprived of the benefits accruing from their illegal activities?	UNFSA Article 19(2); CA Article III(8); CCRF Article 8.2.7.
9.5. Can fishing vessels involved in the commission of an offence, as well as their gear, catches, etc. be forfeited to the State or the fine imposed for the offence be increased by an amount equivalent to their value?
9.6. Can sanctions be imposed on the master and other officers of national fishing vessels which contravene the law, including refusing, withdrawing or suspending their authorizations to service masters or officers on such vessels?	CCRF Article 7.7.2.
9.7. Can licences be refused, suspended, varied or cancelled in response to a serious violation or persistent violations?	CA Article III(8).
10. Other matters
10.1. Does the law provide mechanisms to discourage contraventions of fisheries management and conservation measures applicable to areas beyond the jurisdiction of the State concerned?	For example the so-called Lacey Act in the United States which makes it unlawful to import fish that have been taken contrary to the laws of the other States.
10.2. Does the law require fishing vessels in transit through the maritime zones of the coastal State to stow their gear in a prescribed manner?
10.3. Must licensed fishing vessels stow their gear when in areas in which they are not licensed to fish, or are not licensed to use that gear?
10.4. Must foreign vessels appoint a local agent on whom documents may be served for the purposes of legal proceedings?