Office of the Auditor General of Norway

Transcription

1 Office of the Auditor General of Norway The Office of the Auditor General s investigation of the management and control of fish resources in the Barents Sea and the Norwegian Sea a parallel audit conducted by the Office of the Auditor General of Norway and the Accounts Chamber of the Russian Federation Document no. 3:2 ( )

2 This document is available at ISBN Illustration: Lars Tothammer Photo: Fredrik Neumann/Samfoto, Svein Wik/Scanpix, Haakon Harris/Scanpix

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4 Contents 1 Introduction Summary of the investigation Assessment of illegal and unregistered cod fishing in the Barents Sea and the Norwegian Sea in 2004 and Compliance with decisions taken by the Joint Norwegian-Russian Fisheries Commission5 2.3 Resource control Sanctions for violations of fisheries regulations National system for distributing quotas Implementation of the joint Norwegian-Russian fisheries research programmes The Office of the Auditor General s observations The response from the Ministry of Fisheries and Coastal Affairs The Office of the Auditor General s statement Appendix: Report... 17

5 Ministry of Fisheries and Coastal Affairs The Office of the Auditor General s investigation of fish resources in the Barents Sea and the Norwegian Sea a parallel audit conducted by the Office of the Auditor General of Norway and the Accounts Chamber of the Russian Federation 1 Introduction Unregistered fishing and the illegal harvesting of fish in the Barents Sea and the Norwegian Sea, and the challenges these have set for the fishing authorities control work, have been central topics in the discussions of the Joint Norwegian-Russian Fisheries Commission in recent years. Although the parties have not yet reached agreement on the extent of the unregistered and illegal fishing, the Norwegian and Russian fisheries authorities agree that the problem is serious. The Office of the Auditor General (OAG) and the Accounts Chamber of the Russian Federation have therefore conducted a parallel audit of the management of fish resources in the Barents Sea and the Norwegian Sea. The audit was performed in parallel in the sense that common general audit questions and audit criteria were defined and the same outline used for the reports. The two audit reports were written separately and on the basis of independent information. A major element in the parallel audit has been reciprocal learning, and emphasis has therefore been placed on detailed descriptions of the organisation and working methods of Norwegian fisheries management. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is the overarching legal framework for all national, regional and international measures in the marine sector. The Convention was ratified by Norway in Coastal states that share one or more stocks shall collaborate on the regulation and preservation of the stocks through appropriate organisations. Norway and Russia jointly manage the fish stocks of north-east Arctic cod, north-east Arctic haddock and capelin through the Joint Norwegian-Russian Fisheries Commission. The cooperation on fisheries, which has been in place since the 1970s, has been formalised through the two bilateral agreements of 1975 and Management cooperation takes place within three firelds: research, regulation and resource control. The Convention prescribes that a coastal state must promote the goal of optimal utilisation of living resources in its 200-mile zone through the conservation and management measures deemed necessary, while also ensuring that these resources are not endangered by overexploitation. The Convention also decrees that a coastal state has the right to implement the measures necessary, including boarding, inspection, arrest and judicial proceedings, to ensure 1 Proposition no. 37 to the Storting ( ); Recommendation no. 227 to the Storting ( ). 3

6 compliance with the laws and regulations adopted. This is also stipulated in the bilateral fisheries agreements between Norway and Russia of 1975 and 1976 respectively. Norway and Russia have undertaken to establish rules and conditions for the conduct of their mutual fisheries relations 2 and to ensure that their citizens and fishing vessels abide by the provisions of the fisheries agreement of 1976 and other regulations concerning fishing. 3 The objective of the investigation has been to assess goal achievement and the efficiency and effectiveness of national follow-up and implementation of bilateral agreements between Russia and Norway and decisions taken by the Joint Norwegian-Russian Fisheries Commission. The investigation has covered six topics: 1. The extent of illegal and unregistered cod fishing in the Barents Sea and the Norwegian Sea 2. The implementation of decisions taken by the Joint Norwegian-Russian Fisheries Commission 3. Resource control in Norway 4. Sanctions for violations of laws and regulations relating to the use of living marine resources 5. The distribution and filling of quotas in Norway 6. Norwegian-Russian research programmes in Norway The investigation was limited to cod, haddock and capelin north of 62 N. Some parts of the investigation were confined to cod. The investigation was limited to 2004 and 2005 for most topics, but where possible data have been collected up to spring On the basis of the two parallel investigations, a joint memorandum was signed by the Auditors General of the two countries on 18 June The Russian report will be considered by the Federation Council. The joint memorandum, the Office of the Auditor General s report on the investigation and the report of the Accounts Chamber of the Russian Federation are enclosed as printed attachments. The Russian report and the joint memorandum are not included in the OAG s reporting to the Storting and are attached purely for information purposes. The Norwegian translation of the Russian report has been carried out on assignment from the OAG and is not an official document. The draft of the Norwegian report was submitted to the Ministry of Fisheries and Coastal Affairs, the Ministry of Finance, the Ministry of Defence, the Ministry of Justice and the Police, the Director of Public Prosecutions and the Ministry of Foreign Affairs for their comments. 4 The ministries have submitted their comments separately, and these have been incorporated into the report. 5 2 Agreement of 1976 between the Kingdom of Norway and the Government of the Soviet Union on Mutual Fishing Relations, introductory text. 3 Ibid, Article 5, Section 1. 4 The OAG s letters of 2 March 2007 and 15 March In the letters of 22 March 2007, 11 April 2007, 18 April 2007, 19 April 2007 and 30 April 2007 respectively; 13 March 2007 and 12 April 2007; 23 March 2007; 14 April 2007 and 23 March 2007; 19 March 2007 and 10 April

7 2 Summary of the investigation The investigation is based on a comprehensive analysis of relevant documents, laws and regulations, protocols from the Joint Norwegian-Russian Fisheries Commission, and research reports. Interviews were held with the agencies involved, including the Directorate of Fisheries both centrally and regionally, the Coastguard and other relevant enforcement authorities, the police and the prosecuting authorities, the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime (Økokrim), and the Institute of Marine Research. Statistics were also collected from the Directorate of Fisheries, the Coastguard, and the police register of criminal cases. Three questionnaire surveys were conducted one targeted at active professional fishermen, one at the regional offices of the Directorate of Fisheries, and one at the ten most northerly police districts. A consultant from the Fridtjof Nansens Institute provided considerable help in the conducting of the investigation. SINTEF Fiskeri og havbruk AS (SINTEF Fisheries and Aquaculture) assisted with the statistical analysis relating to the estimate of overfishing. 2.1 Assessment of illegal and unregistered cod fishing in the Barents Sea and the Norwegian Sea in 2004 and 2005 The OAG s investigation shows that considerable cod fishing takes place in the Barents Sea and the Norwegian Sea over and above the total quotas fixed by the Joint Norwegian-Russian Fisheries Commission. Norwegian and Russian authorities agree that this is a substantial problem. However, agreement has not been reached on the extent of the overfishing. This is partly due to the fact that there are different methodological approaches to estimating the total removal of fish. In addition, the methodology used for estimating overfishing is burdened with uncertainty, and the data basis is somewhat deficient. The investigation also reveals that estimates of overfishing vary considerably. A conservative estimate of the total removal of cod in the Barents Sea and the Norwegian Sea indicates overfishing amounting to more than tonnes in This minimum estimate nevertheless indicates that more than every fourth cod that is removed from the Barents Sea and the Norwegian Sea is over and above the fixed quota. According to the investigation, Russian vessels are responsible for a substantial proportion of the unregistered fishing. Overfishing occurs through vessels with allocated quotas removing more than their quota through unregistered landings, landings in third countries with weak monitoring activities, and the reporting or under-reporting of catches on ordinary landings. Illegal fishing is often related to the unregulated trans-shipment of fish. Overfishing can also take place when thirdcountry vessels fish with neither a licence (fishery permit) nor quotas in areas that are not subject to Russian and Norwegian jurisdiction. 2.2 Compliance with decisions taken by the Joint Norwegian-Russian Fisheries Commission Decisions that are taken by the Joint Norwegian-Russian Fisheries Commission shall be incorporated into national laws and regulations by both parties in order to ensure that sanctions can be imposed for any infringements. The OAG s investigation shows that there are clear procedures for how international commitments and decisions taken by the Joint Norwegian-Russian Fisheries Commission are to be transposed into Norwegian legislation. It also reveals that important Commission 5

8 resolutions in the area of monitoring activities are in general incorporated into Norwegian laws and regulations, and that the new provisions are followed and enforced as intended. According to the investigation, however, Russian authorities have followed up certain Commission decisions to only a small extent. This applies particularly to the exchange of information with Norwegian fisheries authorities on satellite tracking, trans-shipment, and landings in third countries key initiatives and issues that require collaboration to resolve the challenges of illegal fishing and trans-shipment in the Barents Sea and the Norwegian Sea. 2.3 Resource control The investigation reveals that Norwegian resource control is broad-based and in general functions as intended. The monitoring of quota uptake is fundamental to resource control, and according to the investigation both the Directorate of Fisheries and the sales organisations have contributed to strengthening quota control during recent years. This is particularly due to improvements in the systems of both the sales organisations and the Directorate of Fisheries, including the Directorate s information on the quotas and rights on which the sales organisations base their quota control. However, the investigation shows that quota control still requires further strengthening, as does the settlement of individual quotas and total quotas. Another aspect revealed by the investigation is that the sales organisations have not yet fully implemented the provisions in the regulations relating to landing declarations and sales notes from These provisions were intended to prevent time lags in quota settlement. The investigation also reveals that some sales organisations and also some other enforcement authorities have very different perceptions of the extent to which the sales organisations should conduct inspections over and above quota control. The question can be raised as to whether monitoring activities that are additional to quota control should be more closely defined since the sales organisations have very different practices in this area. It is also noted that the Directorate of Fisheries wishes to have a more active control function vis-à-vis the sales organisations. In order to verify the information that is used in the quota settlement system, to detect unregistered removal of fish, and to ensure compliance with other regulatory measures, the Directorate of Fisheries conducts a number of inspections of selected vessels and other activities in the fisheries sector. However, the investigation shows that both the scope and the organisation of landing inspections and inspections of shore facilities vary substantially between the regions. There are also material variations in the number of violations of the regulations revealed by the inspections. In addition it has been shown that the number of inspection activities at shore facilities that produce salted fish from cod is substantially lower than those at other shore facilities as a result of the inadequacy of the factors established for calculating the production yield of such fish. 6 The OAG s investigation also shows that the Directorate of Fisheries has not set up an appropriate reporting and registration system for its enforcement work. This means that not all enforcement measures are adequately recorded. In light of general requirements for effective and stricter resource control, it is viewed as important that a reporting system is established that can to a greater extent be used in the management of the enforcement work and that 6 Factors for converting processed fish (for example fish fillets) to round weight (landed fish). 6

9 provides a comprehensive and correct expression of the directorate s total enforcement activities. The Coastguard is also a key player in resource control activities and spends a considerable part of its available time on the supervision and monitoring of fishing activities in waters subject to Norwegian fisheries jurisdiction. The investigation reveals that poor investments in radar equipment and the delayed delivery of helicopters have imposed limitations on this work. 7 The problems arose in 1999, and according to Coastguard Staff new helicopter equipment will not be fully operational until To ensure better monitoring of catches north of 62ºN, foreign fishing vessels must report to the Coastguard for inspection at one of seven control points when concluding fishing activities in the Norwegian Economic Zone. Although the scheme also applies to fishing operations in territorial waters around Svalbard, it does not encompass the Svalbard Fisheries Protection Zone. The question can be raised as to whether this generates weaker control in the Fisheries Protection Zone compared with that in the waters covered by the arrangement. The investigation reveals good cooperation between all the enforcement authorities involved, including the tax administration and the customs and excise authorities, but shows that the extent of the operational cooperation between the enforcement authorities varies. A closer operational cooperation on common inspection subjects could strengthen the effectiveness of overall resource control efforts. 2.4 Sanctions for violations of fisheries regulations Sustainable management of the fisheries resources in the Barents Sea and the Norwegian Sea is contingent on good, appropriate rules and regulations with adequate sanction options. It is also contingent on the fisheries management having a coordinated and effective system, with satisfactory routines and adequate resources for detecting and sanctioning violations of the legislation. The OAG s investigation shows that Norwegian fisheries management generally has a sound, comprehensive body of rules, both geographically and functionally, and that the rules contain adequate authorisation for sanctions. However, it also appears that there is a potential for improvement in some parts of the regulations. This applies to sanctioning violations in connection with sales for example the authorisations for the enforcement authorities to gather information, and to take confiscatory action against shore facilities, and the factors for calculating production yield both on shore and at sea. With some exceptions, the OAG s investigation also shows that Norwegian authorities have a good system for following up and sanctioning infringements of the fisheries regulations. This applies generally with respect to resources, expertise, routines and cooperation between the various enforcement agencies and between the enforcement agencies and the police and prosecuting authorities. With regard to efficiency in handling fisheries cases, the investigation reveals room for improvement in the Norwegian management. This particularly applies to the Norwegian 7 Cf. Document no. 3:16 ( ) The Office of the Auditor General s investigation of defence equipment procurement projects in the Norwegian Armed Forces. 7

10 police and prosecuting authorities where there are differences between the individual police districts with respect to prioritising fisheries cases as well as varying qualifications for handling such matters. In general within the police and prosecuting authorities the procedural time for fisheries cases is also protracted, even though statistics show that most of the fisheries cases that are reported end with the acceptance of a penalty or a conviction. In the case of foreign vessels that engage in illegal, unreported and unregulated fishing, administrative sanctions take the form of refusal/revocation of licences, possibly combined with black-listing. Such sanctions are among the few the Norwegian authorities have at their disposal if the flag state does not fulfil its flag state obligations. The investigation shows that the use of administrative sanctions against vessels and enterprises that engage in illegal and unregistered fishing including foreign vessels and enterprises where the flag state does not fulfil its obligations has been relatively limited. This also applies to Russian vessels. 2.5 National system for distributing quotas The report describes the comprehensive and complex body of national regulations for distributing and regulating the harvesting of fish resources. 8 This topic was earlier discussed in Document 3:13 ( ) The Office of the Auditor General s study of the management of fish resources. Data from the previous investigation have been updated in this report. The description of the national system for distributing quotas in Norway has been included in the OAG s report at the request of the Accounts Chamber of the Russian Federation. 2.6 Implementation of the joint Norwegian-Russian fisheries research programmes The Joint Norwegian-Russian Fisheries Commission sets total quotas for the fishing of northeast Arctic cod, north-east Arctic haddock and capelin. According to the investigation, the parties in the Commission have adopted decision-making rules for setting total quotas for north-east Arctic cod and north-east Arctic haddock with the aim of precautionary management of the stocks. The approved quotas were set in accordance with the decisionmaking rules. However, the real catch was higher than the adopted quota in the investigation period, and the stocks have therefore not been harvested within a precautionary level. There is thus a risk that in the long run the spawning stock will fall below the precautionary level. 9 The OAG s investigation shows that Norwegian scientists have conducted all planned expeditions for cod, haddock and capelin for the years 2004 and 2005 apart from those that were planned to be conducted in the Russian Economic Zone. The investigation also reveals that applications from Norwegian scientists for access to the Russian Economic Zone for planned expeditions have increasingly been rejected. In several cases where scientists applications have been granted, restrictions in the form of time period or geographical area have been imposed. At the same time, Russian scientists have been unable to carry out all their planned expeditions, partly due to financial constraints. Estimates of stocks of a living marine resource are based on data from research expeditions and fisheries statistics. Widespread unregistered fishing makes such statistics unreliable. When the actual catch level additionally exceeds the precautionary limit, it becomes particularly important to monitor stock development closely through research expeditions to ensure a good scientific basis for regulating stocks and setting quotas. 8 Cf. Appendix 2. 9 This corresponds with findings from the OAG s investigation of the management of fish resources, cf. Document no. 3:13 ( ). 8

11 2.7 Follow-up of the investigation In the audit process the OAG and the Accounts Chamber of the Russian Federation have agreed to follow up this parallel audit during the next three years to assess whether the results of the audit have contributed to more efficient and effective management of joint living marine resources in the Barents Sea and the Norwegian Sea and whether the audit has helped to solve the problems of illegal fishing and trans-shipment in these ocean areas. The followup will focus particularly on the following areas: The cooperation between Norwegian and Russian fisheries authorities aimed at analysing information on the overfishing of cod and haddock quotas in the Barents Sea and the Norwegian Sea in The implementation of the Joint Norwegian-Russian Fisheries Commission s decisions taken at the 33 rd and 34 th sessions on the exchange of information relating to satellite tracking, trans-shipment and landings in third-country ports, the conducting of physical inspections of catches, trans-shipment operations and landings in third countries. Legal challenges and challenges pursuant to criminal procedure legislation relating to the application of sanctions on infringements of the fisheries regulations. The correlation between the national systems for quota allocation and the control of the harvesting of fish. Framework conditions for conducting Norwegian and Russian research expeditions. Where appropriate the Norwegian OAG and the Accounts Chamber of the Russian Federation will consider involving the auditing bodies of other countries in this work. The planning of the three-year reporting will start in autumn The work performed on the parallel audit has resulted in the formation of good relations that can make a positive contribution to the audit collaboration in the future. 3 The Office of the Auditor General s observations A substantial quantity of cod is harvested in the Barents Sea and the Norwegian Sea over and above the total quotas set by the Joint Norwegian-Russian Fisheries Commission. Continuous overfishing can have considerable negative effects on the development of the cod stock. Even small reductions in the stock can take years to recoup and can have serious consequences. The uncertainty related to the estimate of the total harvesting of cod in the Barents Sea is a particular problem. One reason for this is that the data on the fishing constitute vital parameters for researchers calculations of the stocks and for their advice. The OAG therefore deems it necessary to develop a system that can provide more precise data on how much fish is actually removed from the Barents Sea and the Norwegian Sea. The OAG is of the view that the Norwegian and Russian authorities should together develop a common methodology for estimating the total quantity fished and emphasises the importance of such work being of a long-term nature. In this connection the OAG also wishes to draw attention to the decision of the 35 th session of the Joint Norwegian-Russian Fisheries Commission concerning setting up a working group to analyse information on the overfishing of cod and haddock quotas in the Barents Sea and the Norwegian Sea. It is essential that Norwegian fisheries authorities continue to follow up this work proactively. 9

12 The OAG has noted that in general Norwegian fisheries authorities follow up all the decisions taken by the Joint Norwegian-Russian Fisheries Commission, but that Russian authorities have not always followed up major Commission decisions regarding control cooperation. The OAG therefore wishes to stress the importance of strengthening the control cooperation and of the Norwegian fisheries authorities continuing their work vis-à-vis the Russian authorities to ensure that meetings on management and control issues can be held as intended by the Commission. The OAG wishes to underline that Norwegian resource control is broad-based and that in general it functions as intended. It is nonetheless regarded as important that the Directorate of Fisheries establishes a reporting system that can be more widely used in the management of the monitoring activities and that provides a comprehensive and correct expression of the directorate s overall control efforts. Moreover the OAG points out the significance of the directorate s ongoing work to develop new yield factors that ensure adequate control of cod at shore facilities. The Coastguard plays a major role in the monitoring of the fish resources in the Barents Sea and the Norwegian Sea. A prerequisite for the effectiveness of the Coastguard s control efforts is that the materials required are available and function as intended. The OAG has noted that deficiencies in airborne warning radar equipment and the delayed delivery of new helicopters have reduced the ability to conduct resource control effectively and in all weather conditions. The problems arose in According to the Coastguard Staff, new helicopter equipment will not be fully operational until In light of the Coastguard s important role in the monitoring of fish resources, the OAG questions why the vessels have for a long period not been equipped with helicopters that can function in all conditions. The operational cooperation between the various enforcement authorities varies throughout the regions of the Directorate of Fisheries. The OAG is of the view that better collaboration could strengthen the efficiency and effectiveness of resource control efforts, partly because the enforcement authorities will in some situations be dealing with the same inspection subjects. In addition, it is important to define the sales organisations monitoring function beyond regular quota control. In this connection the OAG has noted that the Directorate of Fisheries wants a closer follow-up of the sales organisations. The parallel audit shows that there are significant differences between the Norwegian and the Russian laws and regulations in the fisheries area. This applies to what the laws and regulations encompass, where they apply, and the sanction options they authorise. The OAG therefore wishes to emphasise the importance of the Norwegian and Russian authorities strengthening the exchange of experience and knowledge relating to such laws and regulations including sanctioning and developing laws and regulations in this area. The OAG wishes to emphasise the importance of a more efficient processing of fisheries cases by the Norwegian police and prosecuting authorities. In several of the districts there is potential for improvement regarding prioritising, expertise and procedural time. The OAG also questions why administrative sanctions have not as yet been more widely used vis-à-vis Russian vessels that over-fish the cod quotas in the Barents Sea and the Norwegian Sea. Such sanctions constitute the only instrument the Norwegian authorities have at their disposal when Russia does not fulfil its flag state obligations. At the same time it is noted that 10

13 the Ministry of Fisheries and Coastal Affairs is in the process of improving the regulations in this area. The OAG also refers to the fact that scientists from both Norway and Russia have had problems carrying out their research expeditions as planned in 2004 and This situation is unsatisfactory since the execution of such expeditions is vital to enable reliable stock estimates to be drawn up as well as scientifically-based quota recommendations. The OAG wishes to emphasise the importance of the Norwegian authorities continued efforts to ensure Norwegian research vessels the necessary access to the Russian Economic Zone. 4 The response from the Ministry of Fisheries and Coastal Affairs The matter has been submitted to the Ministry of Fisheries and Coastal Affairs, and the cabinet minister replied as follows in a letter of 25 September 2007: Reference is made to the letter of 7 September 2007 from the Office of the Auditor General and the attached document to the Storting on the above subject. The letter requests a statement from the Ministry of Fisheries and Coastal Affairs regarding the OAG s observations and requests that any comments from the other ministries and from the Director General of Public Prosecutions be correlated and incorporated into the statement from the Ministry of Fisheries and Coastal Affairs. The ministry has collected the statements of the other agencies and has the following comments regarding the attached document to the Storting on the above matter: The Ministry of Fisheries and Coastal Affairs would first like to thank the OAG and all the authorities involved for the thorough and comprehensive work that has been done through the OAG s report on the management and control of fish resources in the Barents Sea. In the ministry s opinion the document shows that Norwegian fisheries management in general functions according to the objective of responsible resource management and appropriate control of the harvesting of fish. The work of the agencies involved has been good, and with a few exceptions the cooperation between the various bodies is also described as satisfactory, at the same time as key challenges with respect to future cooperation with Russia have been brought to light. In addition, attention is drawn to some tasks that require further work on the part of the Norwegian authorities. The agencies involved have previously made their comments on the OAG s report. With regard to the OAG s observations in the document sent to the Storting, the ministry shares the OAG s concern about the extensive overfishing in the Barents Sea. Continuous work is being done on several fronts in the relevant sectors to strengthen the control of the harvesting of resources. The OAG s report also brings to light the challenges involved in reducing international overfishing. The ministry agrees with the view that more precise data are required on the quantity of fish that is actually removed from the Barents Sea and the Norwegian Sea, but wishes to make it clear that due to the connection with international overfishing the procurement of precise data is very resource-demanding. 11

14 The OAG has enquired about efforts to establish a common methodology for estimating the total quantity of fish removed. This work is now underway. At the 35th session of the Joint Norwegian-Russian Fisheries Commission it was resolved to set up a Norwegian-Russian working group to work on these issues. So far the group has had three meetings in The ministry agrees on the importance of strengthening the control cooperation and of the Norwegian fisheries authorities continuing their work vis-à-vis the Russian authorities to ensure that meetings on management and control issues are held as intended by the Commission. Norwegian authorities take an active part in this work, but it has proved difficult to persuade key persons on the Russian side to assign priority to participating in the relevant fora. The ministry wishes to point out that communication with the Russian authorities in these matters is not limited to the fisheries authorities, and that the justice sector and the Coastguard are relevant points of contact that are regularly used. The ministry has noted the OAG s observation concerning the importance of setting up a system for managing the monitoring activities, and wishes to state that in cooperation with the Coastguard the Directorate of Fisheries established and implemented a new risk-based management tool for resource control in 2005/2006. A functioning reporting and registration system for managing resource control is therefore now in place, encompassing the Coastguard, the fish sales organisations and the Directorate of Fisheries. This strategic risk assessment entails each of the directorate s seven regions conducting an analysis of the registered control information and activities of the current year prior to each new control year. This work is to result in a strategic risk plan that will steer the region s performance of operational control activities for the coming year. The plan handles each fishery as an individual topic, and identifies risks and estimates risk factors before prioritising the monitoring efforts between the risk areas, using this risk calculation as a basis. So-called measuring cards are compiled for each control topic with an identification of the risk area, a risk estimate, risk prioritisations, risk management and performance requirements. New measuring cards are given and performance requirements set at working meetings with the Control Section of the Directorate of Fisheries at which the year s performance requirements are evaluated before new ones are set. It should also be noted that in 2006 the Directorate of Fisheries began the work of defining yield factors for pelagic fish and demersal fish and for the production of salted fish and dried fish in Norway. The OAG has noted the problems relating to the airborne radar warning equipment on the Coastguard s helicopter-carrying vessels and to the delivery of new helicopters. The account allows room for misunderstandings. It is correct that the new equipment had certain deficiencies and that this led to limitations in the use of helicopters as well as affecting the ability of the Coastguard to carry out their tasks. These circumstances have been reported and described in several propositions to the Storting from the Ministry of Defence. All the vessels in question have now been updated with functioning airborne control radar. With regard to Project 7660 Unit helicopters for the Norwegian Defence this project was approved in the Storting s consideration of Recommendation no. 7 to the Storting ( ), cf. Proposition no. 1 to the Storting ( ). The delivery of the first of a total of 14 helicopters to the Coastguard and the frigates has so far been postponed from October 2005 to September 2009 due to delays in the development and certification of the NH 90 basic version, and is attributable to supplier-conditioned challenges. Following delivery, the 12

15 machines will have to undergo tests and integration for ship-based operations from the vessels in question before the vessels and helicopters will be operational as a system. The other factor that has affected the helicopter situation is that the life of the current Lynx helicopters expires in the period Helicopter availability has thus been hampered by the delayed delivery of new helicopters and the expiry of the life of the current machines. To remedy the problem, the life of up to four Lynx helicopters is being extended. The fact that the OAG questions in this summary why the vessels for a long period have not been equipped with helicopters that can function in all conditions must be based on misunderstandings. The operational limitations have been mainly related to the airborne control radar equipment and not to the Lynx helicopter. Nonetheless it must be admitted that the new NH 90 will have better performance capacity than the current Lynx including for operations in difficult meteorological conditions. The observation on regional variations in operational cooperation between the different enforcement authorities has been noted. It is assumed that the risk-based management tool that has now been established and that is now in place will contribute to more coordinated efforts in the various regions. The ministry has also noted that a fundamental review of the control of fish resources will be made in the proposed new Act relating to marine resources that is currently being prepared. This will include the monitoring responsibilities of the sales organisations. The ministry supports the OAG s view that Norwegian and Russian authorities should strengthen the exchange of experience and knowledge relating to laws and regulations, including the imposition of sanctions and on developing laws and regulations in this area. With regard to the weaknesses that have been pointed out in connection with the prosecuting authorities area of responsibility, these mainly concern aspects of which the Director of Public Prosecutions and the Public Prosecutors in question are aware. Work is continuously being done to improve this area. The Director of Public Prosecutions would like the issues to which the OAG has drawn attention to be particularly borne in mind in connection with both the current preparation of a circular concerning the manner in which the police and prosecuting authorities handle fisheries crime and the ongoing cooperation with the Public Prosecutor offices in Troms and Finnmark and in Rogaland. The document to the Storting draws attention to the differences between the individual police districts prioritisation of cases and to the fact that in general the procedural time is long. This was also noted by the agencies involved during the preparations of the report, and the ministry has nothing further to add. Regarding the question of why administrative sanctions are not used to a greater extent vis-àvis foreign (Russian) vessels, the ministry would like to point out that this is an area where in an international context Norwegian authorities lead the way in the use of precisely these instruments. The international conventions and cooperational bodies that have been established in this area base their activities on the fact that the nations involved must cooperate on fisheries management. The ministry will continue its work on developing the use of such instruments where this is regarded as appropriate. Due to the international dimension of overfishing, it is clear that administrative measures will have a greater effect if mutual international agreement has been reached on them and if they 13

16 are enforced by several countries. In its follow-up of these challenges Norway has been at the forefront in developing new international provisions that provide guidance on administrative measures against foreign vessels. Such rules have been implemented in the North-East Atlantic Fisheries Commission (NEAFC), Norway has proposed similar rules in other regional fisheries management organisations, and following a Norwegian initiative, work is currently in progress to achieve a binding global agreement on port state control in the FAO. In Norway the rules have been implemented by legislative amendments through Proposition no. 98 to the Odelsting ( ) and accompanying regulations that came into force on 1 May 2007 and that include amendments to the regulations on port calls for non-military vessels. However the new Norwegian legal bases go further than this, with the result that it is still possible to take unilateral administrative measures against foreign vessels after a national internal legal assessment has been made. This provision is particularly relevant in cases where international rules have not yet been adequately developed in this area and where the flag state itself does not implement adequate measures. The OAG s concern about the non-execution of relevant research expeditions is shared by the ministry. The question of facilitating such expeditions from both Norway and Russia is regularly discussed between the parties in the relevant fora. 5 The Office of the Auditor General s statement The investigation has shown that Norwegian fisheries management has satisfactory and adequate regulations and has established a good system for control and follow-up and for sanctioning infringements of the regulations. Decisions taken by the Joint Norwegian-Russian Fisheries Commission are in general implemented by Norwegian fisheries administration. The OAG has noted that some challenges still remain in the cooperation with Russia, and wishes to emphasise the importance of Norway continuing its positive role as initiator in this field. The OAG has ascertained that the ministry shares its concern about the extensive overfishing in the Barents Sea and that the ministry is of the opinion that the report draws attention to the challenges involved. The OAG has also noted that government administration has initiated work in several areas aimed at resolving the challenges that still exist. The OAG has registered that the Coastguard has not had functioning helicopters for some years due to operational limitations relating to airborne control radar equipment. The Coastguard has now invested in new helicopters. The availability of helicopters in operational activities will continue to be inadequate for several years due to the expiry of the life of the current machines and the delayed delivery of the new helicopters. The OAG has noted that resource control is risk-based, but wishes to emphasise the importance of establishing a control reporting system that provides good management information for monitoring activities, including the scope and effectiveness of the inspections that are carried out. Appropriate and comprehensive reporting of control activities is also a significant element of assessment work. The OAG also recognises that Norway has led the way in developing international provisions for the use of administrative sanctions against foreign vessels. At the same time, the OAG s 14

17 investigation has shown that the provisions are not fully geared to the challenges relating to overfishing in the Barents Sea. The OAG therefore wishes to emphasise the importance of the new Norwegian legal bases being applied in cases where the international rules in this area are inadequate. The joint memorandum and the report of the Accounts Chamber of the Russian Federation are enclosed as printed attachments. However, the Russian report and the joint memorandum are not included in the OAG s reporting to the Storting and are therefore attached purely for information purposes. The matter will be sent to the Storting. Adopted at the meeting of the Office of the Auditor General on 3 October 2007 Jørgen Kosmo Jan L. Stub Annelise Høegh Geir-Ketil Hansen Ranveig Frøiland Eirik Larsen Kvakkestad 15

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20

21 Contents 1 INTRODUCTION THE BACKGROUND TO THE INVESTIGATION THE BARENTS SEA FISHERIES The Barents Sea and its fish resources Jurisdiction in the Barents Sea MANAGEMENT REGIME IN THE BARENTS SEA The North-East Atlantic Fisheries Commission (NEAFC) The Joint Norwegian-Russian Fisheries Commission OBJECTIVES AND AUDIT QUESTIONS (TOPICS) DELIMITATIONS METHODOLOGICAL APPROACH AND IMPLEMENTATION COMMON AUDIT CRITERIA TOPIC 1: THE SCOPE OF ILLEGAL AND UNREGISTERED FISHING INTRODUCTION The concept of overfishing and possible consequences of overfishing How does overfishing in the Barents Sea take place? Calculating the total removal of cod from the Barents Sea ESTIMATION OF TOTAL COD REMOVAL IN 2004 AND METHODS, RESULTS AND UNCERTAINTY Registered landings of cod in Norway by Norwegian commercial fishing vessels Unregistered ( black ) landings of cod in Norway Russian vessels landings of cod in third countries and Russia Third country vessels removal of cod from the Barents Sea Cod discards Cod catches in the Barents Sea Loophole by fishing vessels under flags of convenience Removal of cod through tourist and recreational fishing in Norway that is not subject to quotas OVER-FISHING OF COD IN THE BARENTS SEA IN 2004 AND Summary of the uncertainty associated with the estimates General conclusions TOPIC 2: IMPLEMENTATION OF DECISIONS TAKEN BY THE FISHERIES COMMISSION AUDIT CRITERIA PROCEDURE FOR INCORPORATING COMMISSION DECISIONS IN LEGISLATION AND REGULATIONS IMPLEMENTATION OF RESOLUTIONS ON NEW TRANS-SHIPMENT PROCEDURES IN NORWEGIAN LEGISLATION FOLLOW-UP AND ENFORCEMENT OF THE NEW TRANS-SHIPMENT REGULATIONS FOLLOW-UP OF THE MEMORANDUM OF UNDERSTANDING (MOU) ON CONTROL COOPERATION IN FISHERIES FOLLOW-UP OF DECISIONS RELATING TO CLOSER NORWEGIAN-RUSSIAN CONTROL COOPERATION Provisions on exchange of information between the parties to the control cooperation Provisions relating to implementation of operational measures Measures considered for implementation by one or both parties Other provisions concerning control ASSESSMENTS: IMPLEMENTATION OF DECISIONS TAKEN BY THE FISHERIES COMMISSION

22 6 TOPIC 3: RESOURCE CONTROL IN NORWAY AUDIT CRITERIA OVERVIEW OF VARIOUS ENFORCEMENT AUTHORITIES AND THE ALLOCATION OF AREAS OF RESPONSIBILITY MONITORING OF QUOTA UPTAKE Basis in Norwegian legislation for the ongoing monitoring of quotas Sales organisations ongoing monitoring of quotas The Directorate of Fisheries use of landing declarations and sales notes Results of the ongoing quota control of cod BACKGROUND TO RESOURCE CONTROL THE DIRECTORATE OF FISHERIES INSPECTION ACTIVITIES (INSPECTIONS ON LAND) Resource input and organisation Inspections by the Directorate of Fisheries Detected violations of the regulations Use of resources and the quality of the Directorate of Fisheries inspections THE COASTGUARD S SURVEILLANCE ACTIVITIES (INSPECTION AT SEA) General description of the Coastguard s activities Point of departure for resource control conducted by the Coastguard Resource control of cod Offences detected Quality of the Coastguard s inspections Circumstances that may limit the effectiveness of inspections DISTRIBUTION OF WORK BETWEEN THE COASTGUARD AND THE DIRECTORATE OF FISHERIES OTHER ASPECTS OF INSPECTION ACTIVITIES ENFORCEMENT ACTIVITIES OF OTHER ADMINISTRATIVE AGENCIES Enforcement activities of the customs and excise authorities The Tax Administration s surveillance activities COOPERATION BETWEEN THE NORWEGIAN ENFORCEMENT AUTHORITIES Sub-committee under the permanent committee participation of the Tax Administration and the customs and excise authorities CONTROL AND ENFORCEMENT AGREEMENTS WITH OTHER COUNTRIES Bilateral agreements New Memorandum of Understanding with the EU NEAFC agreement on port state control Satellite-based surveillance Compliance with agreements concluded with other countries ASSESSMENTS: RESOURCE CONTROL IN NORWAY TOPIC 4: SANCTIONS FOR VIOLATIONS OF ACTS AND REGULATIONS RELATING TO THE USE OF LIVING MARINE RESOURCES IN NORWAY AUDIT CRITERIA Joint audit criteria for sanctions for violations of acts and regulations National audit criteria for sanctions for violations of acts and regulations FORMAL FRAMEWORKS FOR SANCTIONS General description of relevant acts and regulations, including sanction authority and penalty frameworks Description of the assessment by the agencies involved of the sanction options authorised by acts and regulations FORMAL STRUCTURE OF ENFORCEMENT AND PROSECUTION General description of the system for enforcement and prosecution in fisheries cases Authorities that are responsible for control and enforcement at sea (the Coastguard) Authorities that are responsible for control and enforcement on land (the Directorate of Fisheries) The police and the prosecuting authorities The courts

23 7.4 STATISTICS OVER THE USE OF SANCTIONS AND INDICTMENT Authorities that are responsible for control and enforcement at sea (the Coastguard) Authorities that are responsible for control and enforcement on land (the Directorate of Fisheries) Police/prosecution authority and courts CHALLENGES ASSOCIATED WITH SANCTIONS AND PROSECUTION IN PRACTICE Authorities responsible for control and enforcement at sea (the Coastguard) Authorities that are responsible for control and enforcement on land (the Directorate of Fisheries) The police and the prosecuting authority The courts of law Fishermen s assessment of the use of sanctions in practice SANCTIONS FOR VIOLATION OF LAWS AND RULES ON THE USE OF MARINE BIOLOGICAL RESOURCES Rules and regulations and sanction options Practice of the rules and use of sanction options TOPIC 5: DISTRIBUTION AND FILLING OF QUOTAS IN NORWAY INTRODUCTION THE ACCESS RESTRICTIONS THE UPTAKE REGULATIONS Quota distribution INSTRUMENTS USED TO PURSUE THE OBJECTIVE OF GEOGRAPHICAL DISTRIBUTION County or district affiliation Delivery obligation Restrictions in structural arrangements MEANS OF REGULATING FLEET STRUCTURES Structural quota arrangements Operating arrangement Structural fund and structural charges Length restriction rules THE EFFECT OF THE VARIOUS INSTRUMENTS IN THE NORWEGIAN FISHERIES TOPIC 6: NORWEGIAN-RUSSIAN RESEARCH PROGRAMMES IN NORWAY AUDIT CRITERIA International agreements Bilateral agreements National objectives RESEARCH ACTIVITIES ASSOCIATED WITH STOCK ESTIMATES Joint research work by the Institute of Marine Research and PINRO Cooperation in ICES Description of the IMR s different research activities Planned and completed research expeditions in 2004 and The authorities processing of applications to carry out research expeditions Other research activities in the years 2004 and SCIENTIFIC TAC RECOMMENDATIONS AND TAC DECISIONS The concepts in the scientists recommendations Setting of quotas Reasons for differences between recommended maximum quota and TAC ASSESSMENTS:NORWEGIAN-RUSSIAN RESEARCH PROGRAMMES IN NORWAY Scientific TAC recommendations and TAC decisions Research activities associated with stock estimates APPENDIX 1 ENFORCEMENT ACTIVITIES OF THE CUSTOMS AND EXCISE AUTHORITIES

24 1 Introduction 1.1 The background to the investigation Unregistered fishing, and the ensuing challenges for the fishing authorities control efforts, have been central topics in the discussions of the Joint Norwegian-Russian Fisheries Commission in recent years. Although the parties have not yet reached agreement on the scope of the unregistered fishing, the Norwegian and Russian fisheries authorities agree that the problem is serious. 1 The Norwegian and Russian audits have been conducted in parallel in the sense that common general audit questions and audit criteria have been defined and a common structure for the two reports has been developed The Barents Sea fisheries The Barents Sea and its fish resources The Barents Sea is a shallow sea with an average depth of 230 m. The shallowest areas are in the south-east. 3 It covers an area extending from the 2500 m deep Norwegian Sea in the west to the coast of Novaya Zemlya in the east, and from the coast of Norway and Russia in the south to about 80 N. Although the Barents Sea s area of about 1.4 million km² only represents approximately 7 per cent of the area of the Arctic Ocean, the bulk of the Arctic harvestable living marine resources occur in this area. This is partly because the life-cycle of a substantial portion of the fish of the north-east Atlantic takes place partially or entirely in the Barents Sea. One of the most productive fishing grounds in the world, and one from which Norwegian fisheries annually take catches worth about NOK 3 billion, is to be found in the Barents Sea. 4 This represents just under 30 per cent of the value of the catches of the combined Norwegian fishing fleet. Cod, haddock and saithe are the main contributors to these figures, but shrimp and capelin are also important components. The harvesting of these five species accounts for 91 per cent of the value of the combined Norwegian catch from the area. The fish stock of greatest economic importance is north-east Arctic cod, which is also one of the four cod stocks in the North Atlantic that is regarded as being within safe biological limits. North-east Artic cod, north-east Arctic haddock and capelin occur in both Norwegian and Russian areas of jurisdiction. Norway and the Soviet Union/Russia have managed these stocks jointly since the mid-1970s. 1 Cf. for example the formulation in the protocol of the Commission meeting in 2006 which states that in view of both parties acknowledgement that unregistered catches of cod in the Barents Sea constitute a problem, the goal of using all possible means to detect and prevent such illegalities is being given high priority. (Protocol of the 35 th Session of the Joint Norwegian-Russian Fisheries Commission, item 4, page 2.) 2 The two SAIs have also had the opportunity to include individual audit questions, with appurtenant audit criteria, that have been found relevant to the situation in their respective countries. However, the Office of the Auditor General (OAG) has not presented problems other than those that the two countries have in common. 3 Report no. 8 ( ) to the Storting Om helhetlig forvaltning av det marine miljø i Barentshavet og havområdene utenfor Lofoten (forvaltningsplan) [Concerning integrated management of the marine environment in the Barents Sea and the sea off the Lofoten Islands (management plan)]. 4 Hønneland, Geir (2006): Kvotekamp og kyststatssolidaritet: Norsk-russisk fiskeriforvaltning gjennom 30 år [The quota battle and coastal state solidarity: Norwegian-Russian fisheries management over a 30-year period], page 8; Havets ressurser 2005, kap Høsting av Barentshavet [The oceans resources 2005, Chap Harvesting the Barents Sea ], Per Sandberg. 20

25 The wide distribution of cod in the Barents Sea and their migration to the coast of Northern Norway to spawn has resulted in a variety of economic adaptations for Norwegian fisheries. The Norwegian fleet consists of everything from small, one-man vessels, fishing with lines, to modern factory trawlers that produce finished filleted products on board. 5 Danish seine, hand-lines, fixed gear such as nets, and line are employed for catching cod and haddock, while trawls and nets are used for capelin. 6 Most Russian and third-party vessels use bottom trawls, which actively hunt and trap fish, for catching cod. 7 The bulk of the Norwegian quota, on the other hand, is fished with passive gear such as nets, line, seine and hand-line. 8 In 2005, 191 foreign vessels were fishing for cod north of 62 N. 9 Of these vessels, 129 were Russian, while the next largest group was Spanish, and consisted of 16 vessels. 10 In 2005, 53 Norwegian vessels had a cod trawling license Jurisdiction in the Barents Sea According to the international law of the sea, the coastal state has sovereign rights within the 200-mile zone for the purpose of exploring and exploiting, conserving and managing the living natural resources on the seabed and in the waters above it (see Article 56 of the United Nations Convention on the Law of the Sea UNCLOS). In order to protect relevant stocks against over-exploitation and to ensure responsible management of the living resources, Norway has established three 200-mile zones: the Norwegian Economic Zone, the fisheries protection zone around Svalbard (the Svalbard Fisheries Protection Zone) and the fisheries zone around Jan Mayen (the Jan Mayen Zone). In these zones, Norway shall promote the objective of optimal exploitation of living resources, while ensuring that there is no danger of over-exploitation (see UNCLOS Articles 62 and 61). 12 Norway and Russia have not yet entered into an agreement regarding a boundary line for the continental shelf and 200-mile zones in the Barents Sea. It has thus not been clarified whether Norwegian or Russian jurisdiction is to apply to a total area of about km². In 1978, Norway and Russia entered into a temporary practical arrangement (the Grey Zone Agreement) on the regulation of fishing in the area. In a perspective of fishery administration this arrangement is important. The agreement applies for one year at a time, and so far has been renewed every year. Under the agreement, both parties refrain from enforcing their own fisheries regulations in relation to the other party s vessels, while both can enforce these regulations in relation to their own vessels, the vessels of third countries which they 5 SINTEF fiskeri og havbruk AS (2006), rapport del 2c Torsk tatt nord for 62 N som er landet i tredjeland av tredjelandsfartøy i årene 2004 og 2005 [Report part 2c Cod taken north of 62 N that were landed in third countries by third-country vessels in 2004 and 2005]. 6 Havets ressurser 2005, kap Høsting av Barentshavet [The oceans resources 2005, Chap Harvesting the Barents Sea ], Per Sandberg. 7 Havets ressurser 2005, kap Høsting av Barentshavet [The oceans resources 2005, Chap Harvesting the Barents Sea ], Per Sandberg. 8 Here it is the fish that finds the equipment. 9 Statistics from the Norwegian Coastguard. 10 The other countries represented were Germany, Denmark, France, the Faroe Islands, the UK, Greenland, Ireland, Iceland, Poland and Portugal. 11 Information about vessels from the Norwegian Directorate of Fisheries. 12 Cf. letter of response of 14 March 2007 from the Norwegian Ministry of Foreign Affairs to the OAG. 21

26 themselves have permitted to fish in the area, and the vessels of third parties without permission. 13 There are divergent views concerning the geographical scope of the Svalbard Treaty, and some states maintain that the treaty, including its provision about equal rights to fisheries activities, can also be applied to the Svalbard Fisheries Protection Zone. Norway asserts that, given the wording of the Treaty, it can only be applied to the islands and territorial waters. To ensure responsible management, Norway chose in 1997 to establish for the present a fisheries protection zone and not a full economic zone. The right to fish in the zone has been established on the basis of the traditional fishing activities in the area. 14 Pursuant to UNCLOS Articles 63 and 64, states shall cooperate to ensure optimal exploitation and conservation of highly migratory species and stocks that exist in two or more national zones and/or in international waters. It is intended to implement these provisions through the Agreement on the conservation and management of straddling fish stocks and highly migratory fish stocks (the Fish Stocks Agreement), which establishes the framework for regional cooperation and emphasises that the management of these stocks in different zones must be seen in context. The most important stocks in the Barents Sea migrate between different zones and open seas, and it is therefore appropriate to regulate them on the basis of the total area of distribution of the stocks. This principle is adhered to by the two coastal states Norway and Russia on the basis of the fisheries agreements of 1975 and In line with the principles in the UN Convention, the fish stocks in the Barents Sea are managed through cooperation in the Joint Norwegian-Russian Fisheries Commission and the North-East Atlantic Fisheries Commission (NEAFC), and also through the Barents Sea Loophole Agreement between Norway, Iceland and Russia and the five-party agreement on herring between Norway, Iceland, Russia, the EU and the Faroe Islands. In the Barents Sea, this cooperation is particularly important with respect to the Barents Sea Loophole' often referred to simply as the Loophole, an area of international waters that lies between the Norwegian Economic Zone, the Svalbard fisheries protection zone and the Russian Economic Zone. 13 Cf. letter of response of 14 March 2007 from the Norwegian Ministry of Foreign Affairs to the OAG. 14 Brochure Norwegian Fisheries Management at 22

27 Map of the northern areas Source: Norwegian Ministry of Foreign Affairs 1.3 Management regime in the Barents Sea As stated in section 1.2.2, states are committed by international law to cooperate to ensure optimal utilisation and conservation of highly migratory species and stocks occurring in two or more national zones and/or in international waters. The UN Convention on Fishing and Conservation of the Living Resources of the High Seas establishes principles for this cooperation through regional cooperation mechanisms, and relevant stocks in the Barents Sea are managed in accordance with these principles through cooperation in the Joint Norwegian- Russian Fisheries Commission and the NEAFC. Both the total allowable catch (TAC) and the distribution of the quotas are fixed through this cooperation The North-East Atlantic Fisheries Commission (NEAFC) The North-East Atlantic Fisheries Commission is a regional fisheries management body with authority over areas outside the 200-mile zones. The NEAFC primarily has a coordinating 15 Letter of response of 14 March 2007 from the Ministry of Foreign Affairs to the OAG. 23

28 function with respect to regulation of fishing of stocks that straddle the 200 nautical mile limit. NEAFC discusses technical regulatory measures for stocks in the North-East Atlantic The Joint Norwegian-Russian Fisheries Commission The cooperation on fisheries between Norway and Russia has been formalised through two bilateral agreements, of 1975 and 1976, respectively. 17 The 1975 agreement states that Norway and the Soviet Union have agreed to establish a joint fisheries commission. This was a result of the fact that the principle of 200-mile exclusive economic zones was becoming accepted in international maritime law. The bilateral regime was a supplement to the international management efforts that were already in progress within the NEAFC framework. Today bilateral cooperation in the fisheries sector takes place largely within the framework of the Joint Norwegian-Russian Fisheries Commission. Management cooperation takes place on three fronts: research, regulation and control. 18 The Fisheries Commission meets at least once a year to fix total quotas for the three jointly managed stocks: cod, haddock and capelin. At these meetings they negotiate how large the total allowable catch should be, and not how it should be divided between the two parties. The distribution ratio between the two countries has been fixed since the late 1970s. 19 The cooperation between the Russian and Norwegian supervisory authorities evolved through the 1990s in a steadily more operational direction, with daily exchanges of information on fisheries activities, exchange of inspectors both on land and at sea, and joint training programmes Objectives and audit questions (topics) The objective of the investigation has been to examine the management of fisheries resources in the Barents Sea. The full formulation of the objective of the parallel audit is as follows: The objective of the parallel audit will be to report on the efficiency and effectiveness of the national follow-up and implementation of Norwegian-Russian bilateral agreements and decisions taken by the Joint Norwegian-Russian Fisheries Commission aimed at the conservation and rational exploitation of jointly managed fisheries resources in the North- East Atlantic Ocean. 21 The parties have defined the following common audit topics: 1. Assessment of illegal cod fishing in 2004 and 2005, including unregistered fishing of this species of marine biological resources over and above fixed national quotas 16 Ministry of Fisheries and Coastal Affairs Faktaark [Fact sheets ], p Ministry of Fisheries and Coastal Affairs: Faktaark [Fact sheets ]. 18 Hønneland, Geir (2005): Barentsbrytninger. Norsk nordområdepolitikk etter den kalde krigen [Barents Disputes Norwegian Foreign Policy in the North after the Cold War], p The distribution ratio is already fixed as 50/50 for cod and haddock and 60/40 in Norway s favour for capelin; Hønneland, Geir (2005): Barentsbrytninger. Norsk nordområdepolitikk etter den kalde krigen [Barents Disputes. Norwegian Foreign Policy in the North after the Cold War]. 20 Hønneland, Geir (2005): Barentsbrytninger. Norsk nordområdepolitikk etter den kalde krigen [Barents Disputes Norwegian Foreign Policy in the North after the Cold War], p Cf. decision to conduct a parallel audit which is to be performed by the OAG and the Audit Chamber of the Russian Federation, June

29 This part of the report presents estimated total catches of cod in the Barents Sea for the years 2004 and Compliance with decisions taken by the Joint Norwegian-Russian Fisheries Commission The procedure for incorporating Commission resolutions in Norwegian legislation is described first. The question of whether selected resolutions concerning fisheries control have been incorporated in Norwegian legislation and regulations is then considered, and the extent to which the resolutions are followed up and enforced. The exchange of information and the cooperation between the two countries on supervision is also considered as part of this audit question. 3. The effectiveness of state supervisory activities in connection with the conservation of marine biological resources. Detecting, preventing and counteracting violation of national legislation and international agreements on fisheries and the conservation of marine biological resources Here the investigation considers the scope, quality and results of the resource control carried out by the Norwegian fisheries management authorities and the Coastguard. 4. Sanctions for violation of laws and regulations on the use of marine biological resources. Description, analysis and assessment of the established sanction options and the actual use of these options The investigation focuses here on the different authorities views of regulations and sanction options, and whether they are used and function in practice. 5. Distribution and filling of quotas for harvesting marine biological resources that were allocated to fisheries enterprises The various policy instruments applied to the fishing fleet in order to distribute fish resources and reduce fleet capacity are described here. This part of the investigation is based on the OAG s previous study of the management of fish resources Analysis of the execution of the Norwegian-Russian programmes for research on living marine resources, adopted at sessions of the Joint Norwegian-Russian Fisheries Commission This part of the report describes research activities associated with estimating the stocks of north-east Arctic cod, north-east Arctic haddock and capelin in 2004 and Quota recommendations and resolutions are also a topic in this part. 22 Document no. 3:13 ( ) The Office of the Auditor General s study of the management of fish resources. 25

30 1.5 Delimitations The investigation is initially limited to cod, haddock and capelin north of 62 N. However, some parts of the investigation are confined to cod, while others consider all three stocks. The investigation is confined to 2004 and 2005 for most topics, but more years have been included where appropriate. 26

31 2 Methodological approach and implementation The Accounts Chamber of the Russian Federation took the initiative for the performance of a parallel audit on the management of fisheries in the Barents Sea because of the overfishing of cod in the Barents Sea. The investigation was formally launched after an agreement of intent between the OAG and the Accounts Chamber of the Russian Federation was signed in January In the period January April 2006, common goals, audit questions and general audit criteria were drawn up by means of a written dialogue between the parties. At the meeting in Moscow in May 2006, the parties arrived at common audit questions, and an agreement was signed in June The working parties met again in September in Norway to go through methodological approach and preliminary findings and to implement joint audit procedures. In October 2006, the parties reached agreement on a common outline for the two reports. This chapter briefly presents the methods and analytical concepts that have been used to study the various audit questions (topics). The analysis rests largely on three types of source: official documents, statistical material and records of qualitative interviews. The contents of all interview records have been verified by the informants. In addition, a telephone questionnaire was carried out with Norwegian fishermen who were involved in cod fishing in The purpose of the survey was primarily to obtain an overview of the fishermen s impressions of the quality, efficiency and extent of the resource control to which they are subject. A point was also made of obtaining input from the fishermen about the amount of discards and overfishing. This was not a comprehensive survey, as only 103 answers were received. Although it is not possible to draw definite conclusions from a limited amount of data, the investigation provided valuable supplementary information on the issues in question. A consultant from the Fridtjof Nansen Institute assisted the group in formulating the audit questions and gathering the data, in the writing and quality assurance of the report and with the correspondence with the Accounts Chamber of the Russian Federation. Audit question 1: Assessment of illegal cod fishing in 2004 and 2005 The chapter on audit question 1 is primarily an analysis of the total quantity of cod taken from the Barents Sea, with special focus on overfishing. The approach has involved dividing the total catch into delimited components, quantifying these and thus arriving at an estimate of the total catch. The components are as follows: Registered landings of cod in Norway by Norwegian commercial fishing vessels Unregistered landings of cod in Norway Russian vessels landings of cod in Russia and third countries Third countries vessels removal of cod from the Barents Sea Discarding of cod Removal of cod by vessels under flags of convenience Removal of cod through tourist and recreational fishing in Norway that is not subject to quotas 27

32 This chapter is thus a comparison of the various estimates of the different components, of overfishing in particular and total fish removal in general. Specifically, it consisted of an analysis of available reports and other relevant documentation from a number of different sources. It must be stressed that there has been great uncertainty associated with the data on a number of the components listed above. One reason for this uncertainty is that overfishing is normally an illegal activity, the extent of which it is inevitably difficult to document. The various uncertainty factors are discussed in more detail in the facts section. The Norwegian research foundation SINTEF was also engaged to make some independent estimates of overfishing. It must be made clear here that although the estimates were made on behalf of the OAG and independently of Norwegian fisheries management, the underlying data were supplied by the Directorate of Fisheries. Audit question 2: Compliance with decisions taken by the Joint Norwegian-Russian Fisheries Commission This chapter is based primarily on interviews with Norwegian fisheries management authorities and a document analysis of the protocols of the Joint Norwegian-Russian Fisheries Commission meetings, records of meetings of the Permanent Norwegian-Russian Committee for Management and Enforcement Co-operation within the Fisheries Sector, and a review of relevant acts and regulations. It has been important to examine how the resolutions adopted by the Joint Norwegian- Russian Fisheries Commission are actually implemented in Norwegian law through acts and/or regulations. An example used in the report to verify this process is the manner in which the resolution from the Commission s 33 rd session on Introduction of duty to report for fishing and transport vessels involved in cargo transfers at sea from 1 January 2005 is incorporated in Norwegian law. This audit question also considers how Commission resolutions on control, cooperation between partners etc. are complied with in practice. The analyses are based largely on information provided in interviews with the Norwegian Directorate of Fisheries or the Coastguard. Audit question 3: The effectiveness of state supervisory activities in connection with the conservation of marine biological resources. Detecting, preventing and counteracting violation of national legislation and international agreements on fisheries and the conservation of marine biological resources Audit question 3 can be divided into two main types of resource control: inspections on land and inspections at sea. Inspections on land are largely carried out by the Directorate of Fisheries. However, the fish sales organisations are responsible for ongoing land-based quota monitoring. Inspections at sea are largely carried out by the Coastguard. With land-based inspections, it has been important to provide an overview of how land-based resource control actually takes place, as well as the scope, quality and results of the inspections. The analyses in respect of the first point have been largely based on interviews with relevant parties. The interview material has been compared with the routines and guidelines for this type of inspection. Statistical analyses have been a significant means of 28

33 analysing the scope and results of the inspections. It has been important, for example, to quantify variations in the scope of inspections and the percentage of detected violations from one region under the Directorate of Fisheries to another. It has also been important to obtain an expression of the coverage in different areas i.e. how many inspections have been carried out compared with the number of inspections that could theoretically have been carried out if absolutely all relevant units were inspected. The analyses of the Coastguard s inspections at sea have been based largely on statistical analyses of the number of inspections, the number of violations detected, the nationality of the vessels inspected and the coverage of Norwegian, Russian and third-country vessels respectively. These analyses have been supplemented by information from interviews with the Coastguard and information from relevant documents (such as annual reports) from the Coastguard. To supplement the available quantitative and qualitative information on resource control, interviews were carried out with the Directorate of Fisheries and the regions Finnmark, Troms, Nordland and Møre og Romsdal. All interviews were verified by the informants. When reference is made in the presentation of the facts to information from the Directorate of Fisheries or the geographical regions, it will have been taken from these interviews unless otherwise specified. Finally, it should be mentioned that information from the questionnaire for Norwegian fishermen was used to supplement the analyses of both the land-based resource control and the inspections at sea. Audit question 4: Sanctions for violation of laws and regulations on the use of marine biological resources. Description, analysis and assessment of the established sanction options and the actual use of these options At the start of this chapter, assessments of the sanction options for which there is a legal base in Norwegian laws and regulations were obtained from all relevant parties. In the case of the Directorate of Fisheries, the Coastguard, the Troms and Finnmark Public Prosecutor s Office, and ØKOKRIM the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime the information was obtained through interviews. Similar assessments were obtained from the ten most northerly police districts and from professional fishermen through two different questionnaires (QuestBack surveys). The Public Prosecutor s Office of the Nordland district and the Hålogaland Court of Appeal answered written questions. The chapter on audit question 4 also contains a statistical analysis of actual use of sanctions relating to cod fishing north of 62 N in In the case of the Coastguard and the Directorate of Fisheries, the focus was primarily on the number of warnings relative to the number of reports filed for proven violations in different zones/regions. An overview was also obtained of the Directorate of Fisheries use of administrative sanctions in the period in question. With regard to the prosecution and litigation of the reported cases, the analysis focused primarily on the outcome of the cases and the time taken to process them. The figures used have mainly been obtained from the Coastguard s and the Directorate of 29

34 Fisheries inspection databases and the police processing system for criminal cases, STRASAK. 23 Finally, views regarding the main challenges associated with sanctions and prosecution in practice were obtained from all relevant parties. These assessments are based on the same underlying data as the views on sanction options. Audit question 5: Distribution and filling of fish quotas The distribution and filling of quotas is based on detailed rules and regulations, and the discussion of this audit question consists primarily of a brief description of the Norwegian system in this area. The underlying data consist mainly of acts, regulations and other official documents. Statistics from the Directorate of Fisheries are used in addition to present the current distribution of fishing resources and vessels in the Norwegian fisheries. Audit question 6: Norwegian-Russian research programmes in Norway The data on research on cod stock consist largely of research reports from the Norwegian Institute of Marine Research and the International Council for Exploration of the Seas (ICES) and interviews with employees of the Institute of Marine Research. This chapter also deals with the Norwegian processing of Russian applications for permission to carry out research cruises in the Norwegian Economic Zone and the processing of Norwegian applications to carry out cruises in the Russian Economic Zone. The main sources here are interviews with the Norwegian Ministry of Foreign Affairs and the Institute of Marine Research. 23 The identification of cases and extraction of STRASAK data was carried out with the assistance of the Police Data and Materials Service, PDMT. 30

35 3 Common audit criteria The agreement between the Norwegian and Russian SAIs was based on the premise that a common set of audit criteria would form the basis for the parallel audit. These comprised: The Agreement of 1975 between Norway and the Soviet Union on cooperation in the fishing industry. The Agreement of 1976 between Norway and the Soviet Union on mutual fisheries relations. The protocols of the 32 nd, 33 rd and 34 th sessions of the Joint Norwegian-Russian Fisheries Commission. The common audit criteria are presented in a translation of the original text in the box below. 24 More detailed audit criteria were also derived for the Norwegian investigation. These are presented under the individual topic in the investigation. Box 1 Common criteria and indicators for the parallel audit 1. The scope of the illegal fishing of main stocks among the marine biological resources covered by the Joint Norwegian-Russian Fisheries Commission's decisions concerning regulatory measures for fisheries Provisions on compliance with the measures for regulating fishing and conservation of marine biological resources, which are laid down in the Agreement of 1976 between the Government of the Kingdom of Norway and the Government of the Union of Soviet Socialist Republics on mutual fisheries relations The protocols of the 32 nd, 33 rd and 34 th sessions of the Joint Norwegian-Russian Fisheries Commission concerning annual fixed quotas for cod fishing, technical regulatory measures and surveillance of vessels fishing activities (trans-shipment at sea, satellite tracking and other measures). 2. Consistency between, on the one hand, national legislation and rules that regulate fishing and, on the other, the resolutions that emerge from bilateral agreements between Norway and Russia concerning common fish resources, and the decisions taken by the Joint Norwegian-Russian Fisheries Commission Provisions to the effect that rules and conditions shall be laid down for mutual fisheries relations, set out in the Agreement of 1976 between the Government of the Kingdom of Norway and the Government of the Soviet Union on mutual fisheries relations The parties compliance with respect to their own citizens and vessels with provisions laid down in the Agreement of 1976 between the Government of the Kingdom of Norway and the Government of the Soviet Union on mutual fisheries relations The formulation of measures for regulation of fishing in line with international norms, for the purpose of fulfilling the Agreement of 1976 between the Government of the Kingdom of Norway and the Government of the Soviet Union on mutual fisheries relations. 24 The assessment of the common criteria is also based on a quantitative assessment of the indicators that characterise them and on an analysis of the statistical and accounting data of Norwegian and Russian SAIs. 31

36 3. The adequacy of control measures and analysis of the practical effectiveness of control in the area of conservation of marine biological resources Provisions concerning responsibility for and obligations to take effective steps to conserve the fish resources of the North-East Atlantic, laid down in the Agreement of 1975 between the Government of the Kingdom of Norway and the Government of the Soviet Union on cooperation in the fishing industry Ensuring that citizens and vessels comply with the provisions of the Agreement of 1976 between the Government of the Kingdom of Norway and the Government of the Soviet Union on mutual fishing relations The protocols of the 32 nd, 33 rd and 34 th sessions of the Joint Norwegian-Russian Fisheries Commission concerning the ensuring of stringent control of fishing in the Barents Sea and the Norwegian Sea and cooperation to procure full information about deliveries of fish to land, including catches within the frameworks of marine scientific research and deliveries to third countries The protocols of the 32 nd, 33 rd and 34 th sessions of the Joint Norwegian-Russian Fisheries Commission concerning surveillance of vessels fishery activities and exchange of information (trans-shipment at sea, satellite tracking, licences [permits] for fishing); furthermore concerning exchange of information and documents confirming unregistered fishing, and concerning operational control of the activities of third-country vessels. 4. The adequacy of sanctions in connection with violation of fisheries regulations, including prosecution, and the extent to which the measures laid down are implemented Provisions concerning responsibility for and obligations to decide on effective steps for the conservation of the fish resources of the North-East Atlantic, laid down in the Agreement of 1975 between the Government of the Kingdom of Norway and the Government of the Soviet Union on cooperation in the fishing industry Ensuring that citizens and vessels comply with the provisions of the Agreement of 1976 between the Government of the Kingdom of Norway and the Government of the Soviet Union on mutual fishing relations The protocols of the 32 nd, 33 rd and 34th sessions of the Joint Norwegian-Russian Fisheries Commission concerning the use of possible means to counteract non-sanctioned fishing and violation of the fisheries rules. 32

37 4 Topic 1: The scope of illegal and unregistered fishing Introduction The purpose of this chapter is to estimate the total amount of cod 26 removed from the Barents Sea in connection with fishing in the years 2004 and However, there has proved to be great uncertainty regarding the estimates for the various types of removal. Consequently, no overall assessment will be made of total removal beyond the calculations made within each category. The estimates are based largely on existing surveys of the various components which, in aggregate, comprise the total amount removed: commercial fishing (legal and illegal) and discards of fish, tourist and recreational fishing etc. For the unregistered part of the removal, it is a question of qualified estimates, partly because the largest share of this removal is a consequence of illegal activities which the parties involved will attempt to conceal as far as possible. It would therefore be difficult to arrive at any reliable estimate of the total amount removed. However, it has been important in this investigation to make an independent and critical evaluation of the existing analyses, which include the Norwegian fisheries authorities annual estimates of Russian cod removal The concept of overfishing and possible consequences of overfishing The term overfishing may have several different meanings, but is most commonly used to describe fishing in excess of a fixed quota. 27 The term will therefore be used in this sense unless otherwise specified. Over-fishing of cod in the Barents Sea thus refers to all removal of cod legal and illegal 28 in this part of the ocean which exceeds the total annual quotas laid down by the Joint Norwegian-Russian Fisheries Commission. In the most serious cases, overfishing of a given stock may result in total collapse of the stock, as happened with the cod stock off Canada in the 1990s. Even if a stock collapse is avoided, overfishing could have serious economic consequences if it means that a stock cannot be harvested at the level that gives the largest yield. The longer overfishing persists, the longer it will take to build up the stock to an optimal level. Illegal, unreported overfishing also constitutes a source of error in researchers calculations, since the quantity fished is a central parameter in the stock estimates. This in turn may lead to the need to reduce the quota being discovered too late. Illegal fishing also means that some 25 In addition to illegal, unreported and unregulated fishing (IUU fishing, to use FAO s terminology), the presentation in Chapter 4 will include some forms of removal that are not covered by these terms, but which are in excess of the fixed quotas. The activities in question are Norwegian tourist and recreational fishing, which is perfectly legal, and also Norwegian overfishing, which has occurred in some years as an unintentional result of over-regulation (for an explanation, see section 4.1.2) of cod fishing, and which is neither illegal nor unregistered. 26 When this report mentions cod without a further specification, it means the cod that is fished in the Barents Sea and along the Norwegian and north-west Russian coast north of 62ºN., i.e. north-east Arctic cod, Norwegian coastal cod and Murmansk cod, to use the categories with which the Joint Norwegian-Russian Fisheries Commission operates. 27 Havets ressurser og miljø 2006 kap. 4.4 Overfiske i Barentshavet [The oceans resources and the environment 2006, Chapter 4.4 Over-fishing in the Barents Sea], pp. 169 ff, Sigbjørn Ulvatn, Tor Glistrup, Asgeir Aglen and Bjarte Bogstad. 28 Not all removal over and above the total quotas is illegal (see the paragraphs in section on inadequate regulations and on tourist and recreational fishing, which is not subject to quotas). 33

38 fishermen secure advantages at the expense of others, since reduced quotas as a result of illegal fishing also affect those who obey the law. 29 Besides being a serious form of resource crime, overfishing may involve economic crime, such as evasion of tax and government charges How does overfishing in the Barents Sea take place? Over-fishing in the Barents Sea is a complex problem. In some cases it is a matter of completely unregulated activity, where vessels with neither licence (fishery permit) nor quota nevertheless engage in fishing. This type of overfishing takes place first and foremost in the Smutthullet the Barents Sea Loophole. The area lies outside both Norwegian and Russian jurisdiction, and taking action against the undesired fishing activity is thus a problem for Norway and Russia in terms of international law. The vessels in question tend to sail under flags of convenience. In practice this usually means that they are registered in countries that take little part in international cooperation on fisheries management and control. The unregulated fishing in the Loophole has been limited in recent years. A relatively recent example is the vessel Johana/Kabou, which made headlines in the Norwegian media in summer 2006 when the Coastguard arrested the boat and escorted it to a Norwegian port. During the second half of 2006, unregulated fishing in the Loophole was strongly reduced. Fishing and trans-shipment involving vessels with flags of convenience are rare in this area, a trend which has persisted since April However, the bulk of the overfishing takes place when vessels that in principle have all their permits in order and are engaging in a legal activity remove more than their legitimate quota. The scope of this type of overfishing depends on the possibility of concealing the illegal portion of the removal from the authorities. In recent years, there has been a particular focus on Russian vessels that deliver fish to continental Europe directly or via trans-shipment to transport vessels. When the fish is delivered abroad, it is more difficult for the flag state s inspection bodies to check that the quantity landed is consistent with what is reported as having been fished, because the unreported fishing may represent a major discrepancy between the information given to the port state and the flag state, respectively. This makes it very complicated to estimate overfishing, not necessarily because there are weaknesses in the methodological approach, but because procuring the data is very difficult and extremely time-consuming. 31 There was a parallel to the current situation in the 1990s, when Russian vessels began delivering large quantities of fish to Norway and hence were able to avoid inspections on landing in Russia. However, the two countries established close cooperation on control, for example by exchanging landing data, and this solved the problem to a large degree. In the late 1990s, many Russian vessels began to deliver cod to various European ports, and the problem of overfishing was once again on the agenda Havets ressurser 2006 kap. 4.4 Overfiske i Barentshavet [The oceans resources 2006, Chapter 4.4 Overfishing in the Barents Sea], pp. 169, Sigbjørn Ulvatn, Tor Glistrup, Asgeir Aglen and Bjarte Bogstad. 30 Appendix to a letter from the Norwegian Ministry of Fisheries and Coastal Affairs, received 18 April This is illustrated by the large deficiencies in regional and global estimates of the scope of IUU fishing. An IUU monitoring network was established in London on the initiative of the British Department of International Development in November 2006, to provide a basis for better estimates, both regionally and globally. The work of the Norwegian authorities to chart overfishing in the Barents Sea has aroused considerable interest in this network. 32 Hønneland, Geir (2006): Kvotekamp og kyststatsolidariet: Norsk-russisk fiskeriforvaltning gjennom 30 år [Quota struggles and coastal state solidarity: Norwegian-Russian fisheries management over a 30-year period], pp. 51 ff. 34

39 As regards the Norwegian vessels that fish cod in the Barents Sea, both the ocean-going fleet and the coastal fleet deliver their catches in Norwegian harbours. If any vessel should start delivering abroad, it would be detected via the satellite-tracking system which monitors the vessels. When fish is landed, the vessels are quota-checked and sometimes also inspected physically. 33 Thus Norwegian vessels have less opportunity to engage in large-scale overfishing. However, this does not mean that all Norwegian vessels report everything they fish there are a number of cases that demonstrate otherwise. The inspection authorities do not have the capacity to be present at every one of the many thousands of fish landings that take place along the coast every year, so only a minority of landings are physically inspected by the Directorate of Fisheries inspectors. Thus there are some opportunities for landing fish illegally. 34 Purely illegal landings, where the entire catch is not registered, are risky, and the risk of discovery is particularly great for large vessels that are inspected often and that are more visible than small vessels. 35 Entirely black landings are therefore probably very limited. It is undoubtedly more common for parts of the catch not to be reported during fishing and in connection with individual landings, although the extent of this activity is uncertain. Documentation of a number of such cases is to be found in the violation statistics, as a rule under the code incorrect information in catch logbook (see Box 2). Besides Norwegian and Russian vessels, a number of trawlers from third countries (the EU, the Faroe Islands, Greenland etc.) have quotas for Barents Sea cod. They mainly deliver their catches to their home countries, which means that they may be inspected by their own authorities on landing. The quality of the inspection schemes in the different countries varies somewhat, however. A number of concrete cases show that at times third-country vessels have also failed to report parts of their cod catches from the Barents Sea. Among the most recent examples are the Spanish trawlers Arosa Quince, Arosa Nueve and Arosa Doce, which in summer 2006 were arrested in the fisheries protection zone and fined a total of NOK 29 million and had their catches confiscated for under-reporting of large quantities of cod and Greenland halibut. 36 There have also been cases where the regulation of quotas has led to Barents Sea quotas being exceeded. Quota regulation is based in part on the experience of previous years. The availability of fish which is influenced by weather conditions, inflow into the sea and other natural variations makes it difficult to regulate quotas with 100 per cent accuracy every single year. 37 The Norwegian cod quota for the Barents Sea was exceeded in both 2004 and a number of earlier years. During this period, cod fishing was strongly over-regulated, i.e. the sum of vessel quotas in the individual vessel categories far exceeded the total group quota The Norwegian fisheries control system is described in more detail in Chapter This will be discussed in more detail in section 4.2 in the part on unregistered landings in Norway. 35 The risk of discovery is least for vessels under 13 m long, which do not keep a catch logbook and which land catches frequently and often at remote places. However, the motivation for overfishing quotas will be least for the smallest vessels, which often struggle to fill their quotas. This is partly because the quota basis has been relatively good for the smallest boats in recent years, and partly because the activity of small vessels is to a large extent restricted by factors other than quotas: poor weather, limited mobility etc. 36 Norwegian fishermen s journal Fiskaren, 28 July Appendix to a letter from the Norwegian Ministry of Fisheries and Coastal Affairs, received 18 April This kind of over-regulation encourages the most efficient vessels to increase their fishing efforts and is used as an instrument when there is a risk that a vessel category will not manage to fill their quota. See also Chapter 8. 35

40 A prerequisite for over-regulation is that the total catch does not exceed the total quota. In the years in question, the total quota model 39 was introduced for the smallest size class of the coastal fleet, and the weighting of cod, haddock and saithe was particularly challenging with respect to regulation. During these years, quota settlement was considerably more delayed than is the case today, with the result that the authorities failed to stop the fishing when the total Norwegian quota had been fished. However, overfishing declined gradually as the fishing authorities gained experience of using the model. Legal removal of fish in fisheries that are not subject to a quota, as is the case with Norwegian tourist and recreational fishing 40, is not normally included when the term overfishing is used. In this investigation, however, tourist and recreational fishing is included, since one of the aims is to find out how much cod is fished north of 62 N over and above the TAC established by the Joint Norwegian-Russian Fisheries Commission. Finally, part of the removal that exceeds the quotas is attributable to discarding of fish. This is prohibited by both Norwegian and Russian fisheries legislation. Both because of the ban, and because fishermen do not wish to have fish that does not generate an income registered and subtracted from their quota, the catching of fish that is discarded is seldom or never reported to the authorities. The motives for discarding fish vary. The most common reason is probably size, because small fish generally command poorer prices than large fish. The selection and rejection process is called high-grading. Other reasons for discarding fish may be that the catch includes species that are not considered profitable to deliver, or that parts of the catch are damaged/spoilt and will therefore fetch a poor price or be rejected by buyers if they are landed. There are also rules for the proportion of fish under a certain minimum size it is permissible to have in the individual catch and on landing. Fish may therefore be discarded to conceal too high a removal of small fish. 39 The collective quota arrangement meant that vessels of less than 15 m that fished with conventional gear could fish a collective quota of cod, haddock and saithe according to a maximum quota equal to the sum of the maximum quotas for cod, saithe and haddock, after the maximum quotas for saithe and haddock had been converted to cod units, taking account of the differences in first-hand prices. The purpose was to solve problems associated with by-catch and the different availabilities of cod, haddock and saithe, depending on where in Norway one lived. The challenge of designing a collective quota regulation was largely a matter of fixing correct conversion factors and the correct over-regulation bearing in mind that the collective quotas are to be guaranteed, while at the same time endeavouring to avoid there being too great a need for redistribution, or that the total quota is exceeded. Source: Ministry of Fisheries and Coastal Affairs. 40 This applies to tourist and recreational fishing where the fish is not sold. In Norway, recreational fishermen can currently deliver up to 2000 kg of cod per year to the sales organisations for sale. All cod delivered by recreational fishermen for sale are registered on sales notes and deducted from the Category II cod quota. Firsthand sales taking place outside the sales organisations are prohibited for the most important commercial fish types, including cod and haddock. 36

41 Box 2 Illegal fishing in Norway If a Norwegian fisherman is to fish in excess of his quota without it being discovered, he must fail to report some of the catch for the year to the authorities. This quantity must be omitted from both the catch logbook, where catch on board should appear, and from the sales note where the quantity delivered is entered, so that the documents are in agreement (Chapter 5 provides an account of the importance of these documents in resource control). In most cases, such under-reporting requires collaboration between fisherman and fish landing facility, as the sales note has to be signed by both parties. In practice, it can take place in slightly different ways. Examples: Incorrect logging of quantity: the fisherman delivers a little more fish than is entered on the sales note. A lower price is paid for the fish that is not registered than for the rest of the catch. The buyer obtains some fish at an extra low price, while the fisherman is left with a larger residual quota than he would otherwise have had. Incorrect logging of size and quantity: the fisherman delivers, for example, 100 kg small fish, and receives more or less the full price for it at the rates for small fish (lower than for large fish). The fish is entered on the note as 60 kg large fish. The fisherman is left with an extra residual quota. Incorrect entry of species: the buyer takes some cod at haddock price. This fish is entered as haddock on the sales note, the buyer gets cheap cod, and the fisherman is left with an extra cod quota. Cases have also been documented where the buyer has cheated with the weights when fish is delivered. Here a smaller quantity than has actually been caught is entered on the sales note. Source: Interviews with representatives of the Directorate of Fisheries regional offices and the Norwegian Fishermen s Sales Organisation Calculating the total removal of cod from the Barents Sea A full investigation of how much cod is taken in the Barents Sea, including the amount that exceeds the total quotas, must cover fishing by all nations and all types of removal. As indicated in the introduction, such an estimate will never be completely accurate. The purpose of this chapter is therefore not to give exact answers to how extensive total removal and overfishing are, but rather 1. to show how the total removal of cod in the Barents Sea can be broken down into a number of components, which must be quantified individually to enable the total to be quantified. 2. to carry out a critical review of the most important reports on overfishing and other unregistered fishing. 3. to arrive at qualified estimates of the size of the individual components in the light of these reports and the OAG s own calculations. 41 The various components of fish removal The most usual way for the fisheries authorities to quantify the amount fished is to base it on official landing information, which is how it is done in Norway. In Russia, the amount fished is registered on the basis of the fishing vessels own reports from the fishing grounds. This method is also used in Norway for foreign vessels that fish in areas under Norwegian jurisdiction. Fish that is discarded without being landed, and unregistered landings, are additional to the registered catches. 41 Estimation of black deliveries by Norwegian vessels. 37

42 In this report, quantities fished will be divided into the following components for the purpose of calculating the total amount removed. 1. Registered landings of cod in Norway by Norwegian vessels 2. Unregistered ( black ) landings of cod in Norway by Norwegian vessels 3. Total quantity landed by Russian vessels (landed in Norway, Russia and third countries) 4. Total quantity landed by third-party vessels (landed in third countries and a little in Norway) 5. Discards of cod from Norwegian, Russian and third-country vessels 6. Removal of cod in the Barents Sea Loophole by vessels registered in countries that do not have Barents Sea quotas (vessels under flags of convenience) 7. Removal of cod through tourist and recreational fishing in Norway, which is not subject to quotas Table 1 Overview of components of the total removal of cod from the Barents Sea Total removal Russian, Norwegian and third-party vessels removal in commercial fishing Landed Discards (5) Landings by Norwegian Landings by Landings by vessels Russian third-country Registered Unregistered vessels (3) vessels (4) landings (1) landings (2) Vessels under flags of convenience: catches in Barents Sea Loophole (6) Removed through tourist and recreational fishing in Norway (7) This breakdown is used because it is consistent with the focus in existing reports and estimates that will be presented and discussed in this chapter. The estimates in question are the Norwegian Directorate of Fisheries annual estimates of Russian cod fishing in the Barents Sea, various analyses of discards in Norwegian and Russian fisheries, and various surveys of Norwegian tourist and recreational fishing. Because of the uncertainty associated with the calculations, the estimates will be presented as ranges in the form of one low and one high estimate for each type of fishing. 4.2 Estimation of total cod removal in 2004 and Methods, results and uncertainty Registered landings of cod in Norway by Norwegian commercial fishing vessels 42 The Directorate of Fisheries maintains an overview of the quantity landed in Norway on the basis of landing declarations and sales notes which are issued in connection with the individual landing. Data on how much is landed by Norwegian vessels and how much by foreign vessels can be extracted from the directorate s statistics. If the quantity of cod landed by Norwegian vessels exceeds the Norwegian total quota, this will emerge from a comparison of the landing figures and the Norwegian total quota for cod for the year in question. 42 Only one figure is given for each of the years 2004 and 2005 for registered landings in Norway, as this is not a question of estimates but of figures extracted from the statistics of the Directorate of Fisheries. The uncertainty lies in how much fish over and above the registered quantity has been landed (see section 4.2.2). 38

43 According to the Directorate of Fisheries, registered landings of cod fished north of 62 N by Norwegian vessels amounted to tonnes in 2004 and tonnes in This includes all Norwegian catches north of 62 N of north-east Arctic cod and coastal cod, apart from what was caught in tourist and recreational fishing for purposes other than sale. This also covers commercial catches, research catches, catches for teaching purposes 44 and cod delivered by sports fishermen for sale. Table 2 Registered landings in Norway by Norwegian vessels in 2004 and 2005 Year Quantity fished Norwegian total quota Difference As indicated in the protocol of the Joint Norwegian-Russian Fisheries Commission s session of 2004, the Norwegian total quota was exceeded several years in succession in the years prior to this session. 45 The reasons for the overfishing were, as stated, that there had been substantial over-regulation of cod fishing. The degree of over-regulation has been reduced in recent years, and the ongoing quota control has become more efficient. The scope of overfishing has gradually fallen since then. In 2004 overfishing was very limited, and in 2005 the whole cod quota was not taken (cf. Table 2) Unregistered ( black ) landings of cod in Norway No systematic studies have been made of the scope of unregistered ( black ) landings of cod in Norway, although some limited attempts have been made to estimate portions of this fishing (see Box 3). It has thus not been possible in the investigation to build on existing estimates with respect to this portion of the total amount removed. Instead, an approach based on inspection statistics from the Directorate of Fisheries has been used. Specifically, a number of inspection forms, completed in connection with inspections of Norwegian vessels landing fish, have been obtained and reviewed. 46 The approach focuses on the difference between the quantity landed and the quantity entered in the vessel s catch logbook. Incorrect entry in catch logbook is the most usual infringement category in the Directorate of Fisheries inspection database. 43 Statistics from the Directorate of Fisheries. 44 Catches taken within the framework of school quotas, which are allocated to teaching institutions with fisheries-related subjects. 45 Protocol of the 33 rd session of the Joint Norwegian-Russian Fisheries Commission, item A selection of forms from was used. Inspection forms for foreign vessels were not included, as the subject of the study was quantities of cod in unregistered landings by Norwegian vessels. 39

44 The background to this approach is as follows: When landing inspections of individual vessels are carried out, the inspectors arrive as the vessel draws into the quay. The inspection starts with the inspectors securing the vessel s catch logbook 47, so that it is not possible to alter it. The inspectors then supervise the unloading and weighing of the fish to ensure that the correct quantity is entered on the sales note. 48 If the fisherman plans to deliver part of the catch black, he must ensure that only the portion of the catch that is delivered white is entered in the catch logbook (see previous account of how overfishing proceeds). By comparing the quantity in the catch logbook with the quantity that is actually on board, the inspectors can reveal attempts to avoid reporting portions of the catch. The review of the forms showed that in many cases the infringement category incorrect entries in catch logbook means that a smaller quantity is entered in the logbook than is delivered. 49 In the survey, a systematic comparison is made of the quantity entered in the catch logbook and the quantity landed for those landings covered by the selected inspection forms. The average discrepancy between these two figures has been estimated for two categories of inspection forms: forms issued in connection with inspections where the vessel has received a penalty because of the infringement incorrect entries in catch logbook, and forms issued in connection with inspections where no infringements have been detected. It is assumed that by calculating average discrepancies between the quantity in the catch logbook and the quantity delivered for a selection of infringement cases and a selection of non-infringement cases, an indication can be obtained of 1) the proportion of the catch, on average, that attempts have been made to deliver black in those cases where such an infringement has been revealed, and 2) whether the catches entered in the catch logbook in landings where there is no infringement correspond with what is delivered, or whether there is any systematic discrepancy. Non-infringement cases are selected on the basis of the assumption that some fishermen may take a chance on delivering a small black quantity regularly, but on such a small scale that it will not lead to any penalty if the landing is checked. 50 If the cases picked out are representative, it should in theory be possible to generalise them for all landings. By way of illustration: 47 All catches are to be entered in the catch logbook, and everything should have been entered before the vessel reaches harbour. 48 The sales note is both a settlement document and a control document on which the amount of fish that has been delivered and sold is to be entered. Both seller and buyer must sign this document. If the fish is not sold at the same time as it is landed, a landing declaration is to be issued. This must also contain information regarding how much fish has been landed, and it must be signed by both fisherman and fish landing facility. See also Chapter Some incorrect entries may be unintentional; others may be deliberate attempts at cheating. 50 As catches normally have to be estimated in the field, but are only weighed on landing, there will generally be a small discrepancy between the quantity landed and what is entered in the logbook and the inspectors will consequently also operate with a certain leeway. However, if all fishermen attempt to be as accurate as possible with their estimates, one must nevertheless expect, when going through a large number of cases, that the proportion of over-estimates and under-estimates will be almost the same, so that the average discrepancy will be close to zero. 40

45 If it is discovered that in infringement cases attempts are made to deliver 50 per cent more on average than what is entered in the catch logbook, and if 1 per cent of all landing inspections end with a penalty due to such under-reporting in the logbook, it can be assumed that in 1 per cent of all landings attempts will be made to deliver a large portion of the catch black 50 per cent on average. Similarly: If it is discovered that in non-infringement cases, 2 per cent more is delivered on average that what is entered in the catch logbook, it can be assumed that in some of the remaining 99 per cent of all landings a little more will be delivered than is entered in the book 2 per cent on average. This result may indicate that some fishermen take a chance on delivering a little extra on each landing. Inspection forms were obtained for a total of 175 infringement cases in the category incorrect entries in catch logbook which were recorded in the Ministry of Fisheries inspection database in In addition there was random sampling from all relevant landing inspections 51 of Norwegian vessels in the same period that did not result in any penalty. A total of 117 inspection forms from non-infringement cases were reviewed. The average discrepancy between reported quantity and actual landed quantity for the two case categories was calculated by adding together the percentage discrepancy in each case (both under- and over-reporting) and dividing by the number of cases. The average discrepancy for the infringement cases where incorrect entries in catch logbook proved to be attributable to incorrect reporting of quantity was 24 per cent (under-reported) of quantity landed. These cases amounted to about 0.5 per cent of all full inspections in , and can thus be assumed to be representative of 0.5 per cent of all landings. In non-infringement cases, which must be assumed to be representative of the other 99.5 per cent of landings, the average was 2.7 per cent (under-reported) of quantity landed. By weighting the two discrepancy percentages according to the share of landings they represent, a discrepancy between catch entered in the catch logbook before landing and actual catch landed of 2.8 per cent was arrived at for an average landing. 51 Relevant inspections, in this connection, are full inspections of individual landings. A full control entails a physical inspection (count) of the fish that is landed. 41

46 However, there are a number of uncertainty factors associated with this calculation, the most important being: Entirely black landings are probably under-represented in the statistics. For small vessels it will in many cases be possible to wait to enter the catch in the logbook until it can be seen whether the Ministry of Fisheries inspectors are present at the fish landing facility. A number of under-reporting cases will be registered under other infringement codes than incorrect entries in catch logbook. In some cases the correct figure will be entered on the sales note even if the catch logbook is incorrect. Control statistics that are used in this calculation have a number of deficiencies, and the same is true of some of the inspection forms. The first three factors may lead to underestimation of average under-reporting, while the fourth may have the opposite effect. In general, 2.8 per cent can be regarded as a very low estimate of the unrecorded share of the quantity that is landed by Norwegian vessels. Most discretionary estimates of Norwegian fishermen s unreported cod catches are higher than this. When a selection of fishermen were asked to estimate the scale of unregistered landings of cod in Norway (cf. Chapter 2), the responses varied from 0 25 per cent of quantity landed, with an average of 4 per cent (6.5 if the 0 values are excluded). Representatives of the Directorate of Fisheries regional offices and of the Norwegian Fishermen s Sales Organisation have estimated independently of one another that 5 10 per cent of the quantity of cod landed is not reflected in the statistics (for further details, see Chapters 6 and 7). In the light of the investigation based on inspection forms, it is assumed that Norwegian vessels unreported cod catches are at least 3 per cent higher than registered catches. On the basis of the aforementioned discretionary assessments, the maximum estimate for unreported catches is set at 10 per cent. However, it must be stressed that this estimate is very uncertain, as there are no data or calculations that underpin these assessments. Maximum and minimum estimates for 2004 are tonnes x 0.03 = tonnes and tonnes x 0.10 = tonnes. The estimates for 2005 are tonnes x 0.03 = tonnes and tonnes x 0.10 = tonnes. Rounded off to whole thousands of tonnes, the estimates are a minimum of 7000 tonnes and a maximum of tonnes in 2004, and a minimum of 7000 tonnes and a maximum of tonnes in

47 Box 3 Comparison of landing and export statistics The journal Norsk Fiskerinæring claimed in 2000 to be able to prove that in the period more than tonnes more cod was landed annually in Norwegian harbours than was registered. The calculation was based on a comparison of official landing data with statistics on cod exports and estimates of domestic consumption. A discrepancy for the whole period of tonnes was arrived at. In autumn 2000 the Directorate of Fisheries performed their own computations to test the approach that had been used in Norsk Fiskerinæring s investigation. The directorate used the following calculation as a basis: Inventories at the beginning of the year + Landings by Norwegian vessels in Norway + Landings by Norwegian vessels abroad + Imports from foreign vessels and through border stations = Total raw materials Quantity exported Domestic consumption Inventories at year-end = Discrepancy, if any An annual discrepancy of tonnes of cod, or approximately 8 per cent, was calculated for the period However, the directorate concluded that the overall uncertainty was too great for this method to be really useful. The figure could be both much larger and much smaller, depending on the assumptions made. There was uncertainty connected with the following factors in particular: Inventories data proved to be unreliable. Fish that is landed towards the end of the year may be processed or exported the following year. Landing and trade statistics are not directly comparable. In the landing statistics, the quantity landed is reported as live weight. In the trade statistics, however, the various fish export products are recorded in product weight (weight after processing), and there are no reliable conversion factors for product weight to live weight for fish that undergo further processing on land. Nor are the product categories used for the two sets of statistics the same. The trade statistics are accurate with respect to product state (dried, salted etc.), but not with respect to degree of processing. It is therefore very difficult to use the trade statistics to calculate back to live weight. Estimates of domestic consumption are uncertain. For the comparison to be applicable, fish that is landed black must be exported white. Fish that is also exported black is not included in the trade statistics. The greatest uncertainty, according to the directorate, was associated with the use of foreign trade data. The export of cod to Brazil was referred to by way of illustration. The estimated total quantity here could vary by 30 per cent, depending on whether it was decided to classify the fish as clipfish (which is dried and salted) or salted fish (which is not dried). The directorate finally determined that if this type of calculation was to be used, a great deal of work would have to be done to gain an overview of the different cod products, determine the relevant conversion factors and substantially expand the product range in the foreign trade statistics. Source: Memo: Vedrørende bruk av statistikk fra utenrikshandelen i arbeidet med å kartlegge omfang av uregistrert fiske av torsk, [Memo concerning the use of foreign trade statistics in the work of identifying the scope of unregistered cod fishing], Ministry of Fisheries,

48 4.2.3 Russian vessels landings of cod in third countries and Russia Since 2002, the Directorate of Fisheries has made annual estimates of Russian overfishing of cod in the Barents Sea by comparing estimates of the total quantity landed with the Russian total quota for the year in question. The scope of the Russian landings in Norway is documented through sales notes, so the actual estimates have concerned landings in third countries and in Russia. In spring 2006, the Institute of Marine Research in Bergen reviewed the material that formed the basis for the directorate s estimates of Russian fishing in The institute then made its own analysis, using a slightly different methodology, and arrived at a higher total catch than the directorate had calculated. 52 In autumn 2006, SINTEF Fiskeri og havbruk AS (SINTEF Fisheries and Aquaculture) performed an analysis on assignment for the OAG based on the directorate s empirical data for 2004 and SINTEF chose a methodological approach that was similar to the directorate s, but was critical of some of the assumptions that the directorate had made. SINTEF also arrived at a higher total catch than the directorate. In their calculations, the Directorate of Fisheries, the Institute of Marine Research and SINTEF arrived at the following estimates for Russian cod catches in the Barents Sea in 2004 and 2005: Table 3 Different estimates of Russian cod catches in 2004 and 2005 (figures are rounded off to the nearest whole 1000 tonnes) Estimated catch 2004 Estimated overfishing 2004 Estimated catch 2005 Estimated overfishing 2005 Directorate of Fisheries Institute of Marine Not estimated Not estimated Research SINTEF, high estimate SINTEF, low estimate Over-fishing is estimated by subtracting the Russian total quotas of tonnes in 2004 (rounded up from ) and tonnes in 2005 (rounded up from ) from the estimated catch. 52 Aanes, Sondre and Kjell Nedreaas (2006): Evaluation of Status Report for Russian Cod and Haddock Fishing/Reloading at Sea. ICES Arctic Fisheries Working Group Report 2006, Working document 4. 44

49 The Directorate of Fisheries estimates 53 The Directorate of Fisheries approach is briefly as follows: With the aid of satellite tracking data, which provide information about fishing and transport vessels movements into and out of the Norwegian Economic Zone, the number of landings in a year is estimated for all vessels that have delivered Russian-caught cod on the Continent and in Russia. For each of these trips, the quantity on board is estimated (if the actual quantity for the trip is known, this is used). The grand total of quantities from all trips real and calculated yields an estimate of the total quantity landed on the Continent and in Russia. This is added to the quantity landed in Norway, and the result is an estimate of the total quantity fished in the course of the year (excluding discards). The use of satellite tracking data is based on the fact that vessels that travel to and from the Barents Sea with fish generally have to enter the Norwegian Economic Zone. The directorate assumes that when Russian fishing or fish transport vessels travel from the fishing grounds towards the Continent or Russia, it will normally be in order to land fish. 54 Thus it has been possible to form an overview of the number of landings (trips) per vessel per year. Quantity on board For those trips where it has been possible to document quantity on board through transshipment documents and/or landing documents, this documentation has been used in calculations. All figures for fish landed in Norway, and a growing share of what is landed on the Continent, are documented quantities. For those trips where the whole or parts of the cargo are assumed to be unknown, the vessel has been ascribed a quantity. This quantity is estimated using data on the vessel s cargo capacity, and data on the catch on board from trips where the quantity is known (documented). Relevant data about the catch are the fish s average degree of processing (ratio of gutted/headed fish to filleted fish), the species composition (i.e. ratio of cod to haddock) and the fish hold capacity utilisation (how full vessels usually are when they go to unload). Cargo capacity The reliability of the figures the directorate has for the cargo capacity of the individual vessel has varied. 55 In those cases where this sort of information is unavailable, a rule of thumb has been used to the effect that net cargo capacity is about 60 per cent of gross tonnage as a 53 The presentation is based on Havets ressurser 2006 [The oceans resources 2006], Chapter 4.4 Overfiske i Barentshavet [Over-fishing in the Barents Sea], pp. 169 ff, Sigbjørn Ulvatn, Tor Glistrup, Asgeir Aglen and Bjarte Bogstad, and the Directorate of Fisheries overfishing reports of 2004 and The latter are available in Norwegian, Russian and English at: mlasting_paa_havet. 54 However, the time taken before the vessel returns is also considered. A very short or very long absence may mean that the vessel has not landed fish, but had some other errand. Calls at Norwegian ports are not included, as the total quantity landed in Norway is documented on the sales notes, of which the directorate receives a copy. The infringement statistics indicate that Russian vessels very seldom attempt to land fish illegally in Norway. 55 Most Russian vessels that fish in the Barents Sea have a licence for the Norwegian Economic Zone, and the net cargo capacity is often specified in the licence application. 45

50 rule. 56 This figure is based on empirical data. The net cargo capacity has been calculated by multiplying gross tonnage by a factor of 0.6. A knowledge of the stowage factor is also necessary. In reality, vessels cannot load as many tonnes of fish as the net cargo capacity indicates. Fish does not lie as a compact mass in the cargo hold air, packaging etc. takes up some of the space. The directorate has assumed that Russian vessels that load fish can utilise an average of 60 per cent of the net cargo capacity i.e. that the stowage factor is 0.6. This conclusion is based on empirical data from inspections conducted by the Coastguard over many years. From the net cargo capacity and stowage factor, the directorate has calculated how many kilos of fish the individual vessel can have on board when it is fully loaded. Fish hold capacity utilisation When estimating how full the vessels really are when they dock to make a delivery, and how much of the cargo will be cod on average, the directorate has based its estimates on average figures from trips where the cargo on board was documented. For transport vessels that travel to the Continent, a hold capacity utilisation of about 90 per cent has been used, and a cod share of per cent. The figures have varied somewhat from year to year. 57 Degree of processing One last very important factor that has to be taken into account when catches are estimated on the basis of quantity landed is the degree of processing of the fish. When the fish is removed from the sea, various products can be made from it, which implies cutting away parts of the fish. Russian fishing vessels produce both gutted and headed cod and fillets of various kinds. When calculating back from processed fish to round fish (live weight), a conversion factor must be used which depends on the individual product. For example, 1 kg gutted and headed cod corresponds to 1.5 kg round cod. Thus it is necessary to multiply by a factor of 1.5 to convert from gutted and headed weight to round weight. When fillet is produced, more of the fish is cut away. The conversion factors for the most common types of fillet range from 2.5 to With respect to the degree of processing, the directorate has chosen what they maintain is a conservative assessment to avoid overestimating cod catches. It is assumed that all cod in cargoes for the Continent is gutted and headed, so the factor used to convert back to the quantity fished is 1.5. The exception was 2004, when two alternative estimates were made one conservative, where a factor of 1.5 was used, and one less conservative, where it was assumed that some fillet was carried, and an average factor of 1.75 was chosen. However, it should be pointed out that there is great uncertainty associated with the processing and conversion factors Gross tonnage is always specified in licence applications. For vessels that do not have a licence for the Norwegian Economic Zone, including transport vessels under flags of convenience that transport Russian fish from the Barents Sea, there are other sources, such as Lloyds Register of Shipping. 57 There is a certain risk of underestimation here, as it has not always been certain in cases of trips with documented cargos that there is not also an undocumented quantity on board. Empirical data also indicate that the hold capacity utilisation is far lower for vessels travelling to Russia, and that the proportion of cod is different. The directorate therefore uses different figures for fishing and transport vessels travelling to Russian ports than for those travelling to the Continent. 58 In an appendix to a letter from the Ministry of Fisheries and Coastal Affairs, received on 18 April 2007, the ministry points out that fishery authorities in other countries maintain that Norway operates with conversion factors that are far too high. The ministry states that it is therefore not generally accepted that Norwegian fishing authorities factors are conservative, which is seen in some cases where Norwegian authorities 46

51 Example of calculation How much cod does a transport vessel carry on an average trip from the Barents Sea to the Continent, if the gross tonnage is 1000 tonnes? The basis for the calculation is the directorate s conservative assumption that all fish is gutted/headed = conversion factor of 1.5. (There will be a small source of error due to the presence of a little haddock in the cargo, as the conversion factor for haddock from gutted/headed to round weight is 1.4. However the effect will be very small in practice.) Gross tonnage of vessel Net tonnage 1000 tonnes 1000 t x 0.6 = 600 t Factor = 0.6 Net cargo capacity, fish 600 t x 0.6 = 360 t Stowage factor = 0.6 Round weight, fish 360 t x 1.5 = 540 t Conversion factor = 0.6 Adjusted for cod = 80% of cargo 540 t x 0.8 = 432 t Corrected for capacity utilisation of 90% 432 t x 0.9 = t This computational method results in a quantity of tonnes of cod. There are a number of uncertainty factors associated with this manner of estimating total catches. The principle ones are: The cargo vessels that are known normally to transport pelagic fish, like herring, have been excluded, but experience shows that they do occasionally transport cod. At the same time, it is possible that the vessels that normally transport cod sometimes transport pelagic fish. Experience indicates that this happens more seldom than transport of cod by the vessels that have been excluded. On balance, it is therefore probable that this uncertainty may lead to an underestimation of how much has been removed. It is known from experience that some fish is transported by vessels under flags of convenience which cannot be tracked, even though trans-shipment to such vessels is now forbidden. In some cases, the voyages of these vessels are registered in some other way 59, but a number of voyages probably remain undiscovered. These vessels often change flags and names, and vessels regularly disappear while new ones appear. This makes it difficult to maintain an overview of this group of vessels and their activities, and this may lead to an underestimation of total removal. However, this source of under-reporting must be assumed to be strongly reduced since vessels flying flags of convenience have virtually not engaged in transport in connection with Barents Sea cod fishing since autumn Trans-shipment increasingly takes place in the eastern part of the Barents Sea, where Norwegian authorities detect it less often, and some transport vessels go around the Norwegian Economic Zone to the Continent, so that they are not registered by satellite tracking. There is an inherent uncertainty here which contributes to underestimation of the catch. estimates of round weight fish caught by foreign vessels are described as too high by the shipping companies that own these vessels and by the flag state authorities. 59 For example by means of data procured through the Automatic Identification System (AIS). 60 Appendix to letter from the Ministry of Fisheries and Coastal Affairs, received 18 April

52 The fact that cargo capacity, degree of processing, percentage of cod in the cargo and hold capacity utilisation are variables that are estimated approximately and that will vary somewhat in reality means that there is uncertainty in the data that may push the results either upwards or downwards. However, the directorate has been working for several years to improve both the underlying data and the methodology. Documentation of the entire cargo now exists for many voyages, and it has been possible to compare estimates with reality. The agreement has proved to be very good. However, the estimates with respect to degree of processing a factor that can have major effects have continued to be very conservative, as the Norwegian fisheries authorities perceive it. There may be a risk of underestimation here, although the point is disputed cf. footnote In its estimate for 2005, the Directorate of Fisheries concluded that a total of approximately tonnes of cod had been taken by Russian fishing vessels, i.e tonnes more than the Russian total quota of tonnes. Of this amount, about tonnes was landed on the Continent, about tonnes in Norway, and about tonnes in Russia. Approximately tonnes of the total amount was fully documented through transshipment and landing documents. The Institute of Marine Research s calculations The Institute of Marine Research has based its assessment of the total Russian catch of cod in 2005 on the same empirical data as the directorate, using a database established by the directorate in connection with its analysis of the catch. The quantities in round weight of cod and haddock that have actually been transported have been entered in the database in those cases where it has been possible to document them, primarily in the form of bills of lading, landing documents etc. In contrast to the directorate, the Institute of Marine Research has not made any special assumptions at the outset regarding average degree of processing, species composition or hold capacity utilisation on board vessels that transport cod from the Barents Sea. Instead, it has been assumed that those voyages for which there is full documentation are a random selection of the total number of voyages. Against this background, the average quantity of cod and haddock in round weight per voyage has been estimated and then in the same manner as the directorate the total quantity per vessel per year has been calculated, and aggregated for all vessels that transported cod from the Barents Sea in However, the Ministry of Fisheries and Coastal Affairs points out that according to statistical theory it is not correct to say that the voyages for which there is full documentation are a random selection. On the contrary, the Norwegian fisheries authorities selection may be influenced by the fact that they are particularly interested in analysing risk objects, i.e. that 61 In an appendix to a letter received 18 April 2007, the Ministry of Fisheries and Coastal Affairs points out that it is difficult to see that there are alternative methods of estimation with a better empirical foundation than those developed by the Ministry of Fisheries. It is pointed out in this connection that the British company MRAG has used other interesting methods of estimation in its work on estimating fishing of Patagonian toothfish, but it appears that these may be less accurate calculation models than those used by the Norwegian fisheries authorities on cod fishing in the Barents Sea. In the case of a number of important fisheries where there is believed to be considerable overfishing, there is really no established model for estimating the scale of this overfishing. 62 Aanes, Sondre and Kjell Nedreaas (2006): Evaluation of Status Report for 2005 Russian Cod and Haddock Fishing/Reloading at Sea. ICES Arctic Fisheries Working Group Report 2006, Working document 4. 48

53 if these are regarded as a representative sample, there is a danger of overestimating the overfishing. 63 As shown in Table 3, the Institute of Marine Research s estimate of the catch in 2005 was tonnes. This corresponded to a catch in excess of the Russian total quota of tonnes, and an unregistered catch of tonnes. The discrepancy between the last two figures (overfishing of the quota and unregistered catches) is due to the Russian quota being under-fished, compared with the official catch statistics, by about tonnes in SINTEF Fisheries and Aquaculture s calculations 64 Research institute SINTEF has also used the directorate s data as a basis for its estimate of Russian fishing. Like the Institute of Marine Research, SINTEF has assumed that the directorate s tracking information and the documentation on quantity that are available for some of the documented voyages to and from the Barents Sea are correct. In addition, SINTEF has procured some technical data 65 (tonnage, main dimensions and cargo hold volume) relating to the cargo capacity of the transport and fishing vessels in question. To actually estimate the catch, SINTEF has chosen to use the same general methodological approach as the directorate. In other words, an overview of the catch that is regarded as documented has been made and the undocumented catch estimated, and these figures have then been added together. For those trips where the quantity is not documented, SINTEF like the directorate has made a number of assumptions with respect to what would be an average or typical product and species composition and hold capacity utilisation. Although SINTEF has used basically the same data in its calculations, and the same general method as the directorate, they arrive at distinctly higher figures for total catch (cf. Table 3). This is because SINTEF considers that the directorate s assumptions have been generally too conservative with respect to estimated cargo capacity, product mix and to some extent also stowage factor. The second of these factors product mix has a particularly strong impact. With respect to cargo capacity, SINTEF points out that there is no universal rule of thumb to the effect that a vessel s cargo capacity = gross tonnage multiplied by 0.6. The institute shows through a number of examples that this ratio can vary from vessel to vessel, and that the factor tends to be higher for cargo vessels than for fishing vessels. The conclusion drawn is that the directorate has underestimated the total net cargo capacity of the vessels in question. 66 With respect to product mix, SINTEF points out that the directorate has been markedly conservative in its estimates. The institute considers that the percentage of fillet that is produced and landed is probably much higher than that assumed by the directorate. 63 Appendix to a letter from the Norwegian Ministry of Fisheries and Coastal Affairs, received 18 April The presentation of SINTEF s investigation is based on the report Torsk fanget av russiske fartøy nord for 62ºN og landet i tredje land i 2004 og 2005 [Cod caught by Russian vessels north of 62 N and landed in third countries in 2004 and 2005], SINTEF Fisheries and Agriculture, 19 October Mainly obtained from the shipping register Lloyd s Register Fairplay. 66 In an appendix to a letter received on 18 April 2007, the Ministry of Fisheries and Coastal Affairs stresses that the Ministry of Fisheries rule of thumb is based on empirical data, and that this is therefore an inductive approach based on a large number of empirical cases. The ministry points out further that there is also uncertainty associated with mathematical calculation of cargo capacity for this type of vessel based on data collected from different registers, and that the margins of error are not necessary larger in an inductive approach based on collection of data from a large number of cases. 49

54 Reference is made to circumstances that indicate that there has been a fair amount of fillet in those cargos where quantity has been documented, and that Russian factory trawlers in the Barents Sea must be assumed to process the bulk of their catches into fillet. SINTEF further assumes that the directorate s assumption of a stowage factor of 0.6 is correct for gutted and headed cod. However, it is argued that the factor for fillet is normally higher than for fish that have been gutted/headed. SINTEF has therefore used a stowage factor of 0.7 for fillet in its calculations. Since SINTEF wrote its report, the Directorate of Fisheries has devoted particular attention to analysing the amount of fillet in Russian vessels. These figures ( tonnes of fillet in 2006) may indicate that the directorate s stowage factor is more correct than assumed by SINTEF. 67 On the basis of these assumptions, SINTEF concludes that the lowest probable catch in 2005 was about tonnes (corresponding to overfishing of tonnes), and that the highest probable catch the same year was about tonnes (corresponding to overfishing of tonnes). 68 As Table 3 shows, SINTEF s estimate for the Russian catch for 2004 was far lower than for 2005, and there was less difference between the directorate s and SINTEF s estimates for 2004 than for Appendix to a letter from the Norwegian Ministry of Fisheries and Coastal Affairs, received 18 April The low estimate is based on 100 per cent of the cargo being gutted and headed cod, while the high estimate is based on 20 per cent of the cargo being fillet and the remainder gutted and headed. Both the low and the high estimate are based on a hold capacity utilisation of 100 per cent. This assumption is made to compensate for assumed underestimation of cargo capacity and the percentage of fillet in the cargo. 50

55 Box 5 An alternative method of calculating overfishing In 2005, the World Wide Fund for Nature made a study of Russian fishing in the Barents Sea which indicates that many vessels over-fish their quotas to a substantial degree. The study builds on an investigation of fisheries statistics that was conducted in 2004 by the fisheries research institute PINRO (the Institute of Marine Research s main Russian partner see also Chapter 9). PINRO discovered that a number of fishing vessels appear to be unreliable in their reporting of catches from the Russian Economic Zone and the Grey Zone. The methodology used was as follows: 1. Comparison of catch rates for reliable and unreliable fishing vessels in different zones. The average daily catches of the reliable vessels were 16 tonnes in the Norwegian Economic Zone, 14 tonnes in the Svalbard Fisheries Protection Zone and 13 tonnes in the Grey Zone and the Russian Economic Zone. The average daily catches of the unreliable vessels were 19 tonnes in the Norwegian Economic Zone, 15 tonnes in the fisheries protection zone and 5 tonnes in the Grey Zone and the Russian Economic Zone. 2. Comparison of catch rates in the Russian Economic Zone and the Grey Zone over time for a number of vessels. Catch rates proved to have dropped appreciably in the course of a few years, despite rising catch rates in other zones in the same period. 3. Comparison of catch rates in the same area for fishing vessels with and without researchers on board. Catch rates for the former were twice as high as for the other vessels, and almost three times as high as for the unreliable vessels. All in all, these results indicate that some vessels engaged in significant under-reporting of their catches in the Grey Zone and the Russian Economic Zone in As pointed out in the report, such data on discrepancies in catch rates, coupled with data on total fishing time for unreliable vessels, are used to make a rough estimate of the scale of unreported fishing. Source: Analysis of Illegal Fishery for Cod in the Barents Sea. WWF-Russia Report. September By way of conclusion, it may be mentioned that in 2006 the Russian fisheries authorities are reported to have made their own assessment of the Russian catch, but this report has not yet been published. However, the results of this assessment were presented at a meeting of the Joint Norwegian-Russian Fisheries Commission in 2006 and, according to the protocol, Russian overfishing in 2005 was estimated at tonnes in this assessment. 70 As only the conclusions of the Russian report are known, it is assumed in the present investigation that the Directorate of Fisheries lowest estimate of tonnes for 2004 and tonnes for 2005 can be regarded as minimum estimates for Russian cod catches for these two years. SINTEF's two highest estimates of tonnes for 2004 and tonnes for 2005 can similarly be regarded as maximum estimates for the Russian cod catch. 69 The report is available in both English and Russian versions on the website of WWF Russia Protocol of the 35 th session of the Joint Norwegian-Russian Fisheries Commission, item

56 4.2.4 Third country vessels removal of cod from the Barents Sea Vessels from the various third countries that fish cod in the Barents Sea generally land their catches in their home countries. Those who fish on a Norwegian licence (the majority) regularly send catch reports to the Norwegian authorities, while those who fish on a Russian licence report to the Russian authorities. The figures reported are to some extent checked through inspections of the vessels at sea (in Norwegian areas of jurisdiction by the Coastguard), and in a few cases through landing inspections in Norway. The great majority of vessels that land their catches in their own countries may also be inspected by their own authorities on landing. The Norwegian authorities have some opportunity to request inspections to be carried out through agreements on control and enforcement with some of the countries to which the vessels belong. 71 The quality of the control arrangements varies from country to country, however, and not all recipient countries have control agreements with Norway and Russia. Norway does not have such an agreement with Spain. 72 No previous analyses have been made of third-country vessels total Barents Sea cod catches that include estimates of any unregistered catch, and SINTEF was engaged to make an estimate of this component. However, SINTEF discovered that the possibilities for estimating any unregistered catch were limited as the Directorate of Fisheries does not have the same background data for third-country vessels as it does for Russian vessels. SINTEF therefore carried out a highly simplified variant of the method used by the directorate to calculate the Russian cod catch, based largely on satellite tracking data and technical data regarding ships. As the directorate only managed to procure satellite tracking data for Spanish vessels in 2005, SINTEF s calculations were limited to the Spanish catch in For other countries, and for 2004, SINTEF has simply compiled official data on catches. 73 Registered Barents Sea cod catches by third-country vessels in 2005 (tonnes) The table shows that registered catches by third-country vessels amounted to about 9400 tonnes less than the quota, i.e. only 86 per cent of the quota was fished. In 2004, the thirdcountry quota was tonnes, and the registered catch tonnes, i.e. 97 per cent of the quota was fished. 71 Control agreements, the Directorate of Fisheries Control Section October In principle, this applies only in the event of concrete suspicion of violations, and for the present applies to only a few of the bilateral agreements on control Norway has with other countries. 72 The Ministry of Fisheries and Coastal Affairs has been attempting to initiate a dialogue with the Spanish fisheries authorities in this respect. The Ministry of Fisheries and Coastal Affairs and the Spanish Ministry of Agriculture, Fisheries and Food agreed on 12 March 2007 that they should draw up a bilateral agreement. Work on this agreement commenced at the end of March The following information on SINTEF's investigation is based on the report Torsk tatt nord for 62ºN som er landet i tredjeland av tredjelandsfartøy i årene 2004 og 2005 [Cod taken north of 62 N and landed in third countries by third-country vessels in 2004 and 2005], SINTEF Fisheries and Aquaculture, 31 October

57 Table 4 Third-country catches of cod in the Barents Sea in 2005 (all figures have been rounded off to the nearest whole 100 tonnes, and this results in a small discrepancy between the sum of the individual countries catches and total third-country catches ) Country Norwegian Economic Zone Fisheries protection zone Russian Economic Zone Total Spain Other EU countries Greenland Iceland Faroe Islands Total third-country catches Third-country quota Discrepancy quota/catch 9400 SINTEF s surveys of satellite tracking data and the cargo capacity of the Spanish vessels indicate that in 2005 they could have taken a maximum of tonnes of cod, as opposed to a registered catch of tonnes. However, it is stressed that the maximum estimate is the highest theoretically possible catch and that the real catch is assumed to have been far lower. SINTEF s calculations are based on the following data, conditions and assumptions: Tracking data from the directorate showed that altogether 16 Spanish trawlers fished in the Barents Sea in 2005, and that they made a total of 21 trips to and from the Barents Sea in the course of the year. It was assumed that on these trips the vessels returned to Spain with fish, and that the Spanish vessels did not use transport vessels for such deliveries. Where the vessels fish hold capacity was not known, it was estimated on the basis of acquired data on gross tonnage and dead weight. In the light of information about the duration of the vessels stays in the Barents Sea, it was assumed that they could have been fully loaded on their return trips to Spain. It was assumed that two of the vessels had the means of producing fillet, as it could be established with certainty that two of the vessels were factory trawlers. A stowage factor of 0.6 was assumed for gutted and headed cod, 0.7 for fillet and 0.85 for salted fish. A conversion factor of 1.5 was assumed for gutted and headed cod, 2.9 for fillet and 2.55 for salted fish. Haddock was assumed to make up 15 per cent of the catches. Information was received from the Coastguard to the effect that the Spanish ships "largely" produced salted fish in As salted fish is a highly processed product (and thus has a high conversion factor), a cargo of salted fish will contain much more fish in terms of round weight than a load consisting of the same number of tonnes of gutted and headed fish. At the same time it is important to be aware that Norway operates with a very high conversion factor for salted fish Appendix to a letter from the Norwegian Ministry of Fisheries and Coastal Affairs, received 18 April

58 The estimated maximum catch of tonnes of cod is based on the assumption that factory trawlers only produced fillet and the other 14 vessels only produced salted fish in SINTEF assumes that the product mix was more varied in reality, and that there were species other than cod and haddock in the catches. In consequence, tonnes is regarded as an unrealistically high estimate. At the same time, SINTEF considers that the registered quantity of tonnes may be too low. If this figure is compared with the calculated transport capacity, and it is assumed that the factory trawlers mainly produced fillet, the 14 other trawlers must have produced mainly gutted and headed cod for the estimate to tally. This is inconsistent with the Coastguard s information that the main product was salted fish. SINTEF therefore concludes that it is probable that the Spanish trawlers have over-fished their cod quota in the Barents Sea, even though the amount is assumed to be well under the theoretical maximum estimate. As there are no separate estimates available for most third-country vessels, the minimum catch estimate for the two years 2004 and 2005 is set as equal to the registered catch plus 3 per cent (equivalent to the minimum estimate of the scope of Norwegian vessels black catches) i.e = tonnes for 2004 and = tonnes for For 2004, the maximum estimated catch is set equal to the registered catch + 10 per cent (equivalent to the maximum estimated for Norwegian vessels black catches), a total of = tonnes. For the Spanish vessels, the highest probable catch is set at tonnes for This figure is based on SINTEF s findings, which indicate that the Spanish catch was very probably a good deal higher than what is registered, but at the same time clearly lower than the theoretical maximum catch of tonnes. The highest probable catch in 2005 for other third-country vessels is set equal to the registered catch plus 10 per cent (equivalent to the largest probable black catch by Norwegian vessels), a total of = tonnes. Rounded off to whole thousands of tonnes, the estimates are a minimum of tonnes and a maximum of tonnes for the third-country fleet in For 2005, the minimum estimate will be tonnes and the maximum estimate tonnes (Spanish catch) tonnes (other third-country catches) = tonnes. 54

59 4.2.5 Cod discards Norwegian investigation of discards Discarding is one of the fishery infringements that is most difficult to detect, and this means that it is difficult and resource-intensive to calculate the amounts that are discarded. Data about discards is not compiled systematically in Norway, but sporadic investigations have been conducted to determine the scale of discards in some fisheries. This has been done for cod fisheries in particular, because discarding of fish under the minimum size has been regarded as a problem. 75 An article that compiles existing data on discards in Norway was presented in 2002 by marine researchers John Willy Valdemarsen and Odd Nakken. 76 The article presents an overview of 55 Norwegian fisheries with respect to catch object, fishing method, type of vessel and catch area/season, and for each fishery the authors provide an assessment of the discard problem. They also estimate how large a proportion of the total catch ends up as discards in the form of a low and a high percentage. The authors state that these estimates are based on various sources of statistics and knowledge of Norwegian fisheries, and they stress that these figures do not have a scientific basis but can serve as guidelines and can form a basis for detailed investigations of discards. 77 In connection with the present audit investigation, John Willy Valdemarsen drew up a separate memo 78 based on the article from 2002, which specifies 1) The fisheries in which cod discards are believed to occur, and 2) The amount that cod discards are assumed to constitute as a percentage of the catch and in absolute figures for the different fisheries. 75 Valdemarsen, John Willy and Odd Nakken (2003): Utkast i norske fiskerier [Discards in Norwegian fisheries]. Report submitted at a seminar on discards in Nordic fisheries at Sophienberg Castle, November. 76 Valdemarsen, John Willy and Odd Nakken (2003): Utkast i norske fiskerier [Discards in Norwegian fisheries]. Report submitted at a seminar on discards in Nordic fisheries at Sophienberg Castle, November. 77 Valdemarsen, John Willy and Odd Nakken (2003): Utkast i norske fiskerier [Discards in Norwegian fisheries]. Report submitted at a seminar on discards in Nordic fisheries at Sophienberg Castle, November., page Valdemarsen, John Willy (2003): Utkast av torsk i norske fiskerier i årene 2004 og 2005 [Discards of cod in Norwegian fisheries in the years 2004 and 2005], Bergen

60 Table 5 Annual discards of cod in Norwegian fisheries, based on total catches in 2005 (shrimp and capelin) and 2000 Fishery Catch Cod discards, Cod discards, % tonnes Min Max Min Max Factory trawling for cod in the Barents Sea Fresh fish/freezer trawling for cod in the Barents Sea Small-scale trawling for cod in the Barents Sea Total cod discards from trawling for cod Autoline fishing for cod Total cod discards from deep-sea fishing for cod Seine fishing for cod on the Troms-Finnmark coast Seine fishing for skrei (spawning cod) Coastal line fishing Lofot fishing with line Hand lines in Finnmark Lofot fishing with hand line Fishing for cod with nets in Northern Norway Lofot fishing with nets Total cod discards in cod fishing Shrimp trawling in the Barents Sea/Svalbard Coastal shrimp trawling north of 62ºN Trawling for capelin Trawling for herring in Vestfjorden and on the coast Float line fishing for haddock Purse seining for herring Total cod discards in fishing for species other than cod Total As shown in Table 5 80, it is estimated that annual cod discards in Norwegian fisheries are of the order of between 7000 and tonnes. Most of the discards are made in connection with fishing for cod or other gadiform fish. With the exception of shrimp and capelin catches, the table has not been adjusted for changes in catches in 2004 and 2005 compared with the estimates for The Norwegian total quotas for cod were higher in 2004 and 2005 than in This may give reason to assume that cod discards were somewhat larger in 2004 and 2005 than the table indicates. According to the Ministry of Fisheries and Coastal Affairs, however, larger quotas will give less incentive to engage in high-grading. If we then assume that the Norwegian quotas were over-fished by somewhere between 3 per cent and 10 per cent during these years (cf. section 4.2.2), the discard figures must be further revised upwards. At the same time it must be borne in mind that there has been a strong focus on the problem of discards in recent years. The increased attention surrounding the problem, from both control bodies and fishermen, may have contributed to a decline in the percentage of fish that has been discarded since In the nine-party collaboration between government authorities and parties in the fisheries industry on measures against irregularities (see Chapter 79 The memo stresses that the number of individual cod that are discarded in shrimp trawling will be high, even if the discard in tonnes is moderate. This is because only the very smallest cod end up as a by-catch in shrimp catches. 80 The table is based on a similar table in Valdermarsen s memo from

61 6) there has been a particular focus on discards, and the Ministry of Fisheries is of the opinion that discards have been significantly reduced in recent years. 81 Moreover, a small share of what is discarded will be associated with fishing south of 62ºN. It can generally be assumed that annual cod discards north of 62ºN in Norwegian fisheries lie somewhere between the minimum and maximum limits in the table, after they have been rounded up to the nearest whole 1000 tonnes, but probably at the lower end of this range. In this investigation, 8000 tonnes and tonnes will be regarded as the minimum and maximum estimates, respectively, for discards of cod from Norwegian vessels north of 62ºN for both 2004 and In the questionnaire survey for fishermen, the respondents reported an average discard share in Norwegian cod fisheries of 2.4 per cent (4.2 per cent if zero values were excluded). Russian investigation of discards A study designed by the Russian Fisheries Research Institute, PINRO, considers only cod discards in trawler fishing for cod in the Russian part of the Barents Sea, but covers the whole period One method used here is to compare the catch composition of a trawl haul taken in the field by vessels with researchers on board with the catch composition of fish landings from other vessels that have fished in the same area. The size of any discrepancy provides an indication of the scale of discards. 82 The conclusion is that there were systematic differences in the catch compositions of the two categories of vessel in all years covered by the study. The proportion of small fish was far higher for the vessels where researchers could observe the catches, and where their presence contributed strongly to preventing discards, than for other vessels. The scale of the discards proved to vary strongly from year to year - from a minimum of about 3 million individual fish (in 1993 and 1994) to a maximum of 22 million individual fish (in 1998). Converted into weight, this is equivalent to discards of from 6000 to tonnes per year. This gives a variation in discards from trawler fishing for cod in Russian areas of jurisdiction from less than 1 per cent of catches in some years to almost 20 per cent in other years. 83 On the basis of the tendency in the later years of the study, it is assumed that the scale of discards was fairly far removed from both these extreme values in 2004 and In this study, the range of discards in Russian cod fishing in the Barents Sea is therefore placed at 81 Appendix to a letter from the Norwegian Ministry of Fisheries and Coastal Affairs, received 18 April Sokolov, K.M. (2003): Estimation of cod discards in the Barents Sea and adjacent waters in Comparison of results obtained using different methods. 83 These percentages are based on a rough estimate of the reported figures shares of Russian cod quotas for 1993 and 1998, respectively. It is not unreasonable to assume that there were large variations in discards in the period in question, and that they may have increased up to 1998 and then declined. According to the Coastguard, Russian vessels previously tended to keep all catches brought on board to a much greater extent than Norwegian ones. This situation changed with the Russian fleet s increasing market adaptation in the course of the 1990s, and there is reason to believe that the discard percentage rose sharply during these years. In recent years, the introduction of technology such as the sorting grid has contributed to reducing discards. It is also pointed out in the Russian study that annual variations in the size composition of the stock will have significance for the discard frequency the more small fish, the more discards. In the Russian parts of the Barents Sea, where the study was performed, cod is normally far smaller than in Norwegian waters, and the smallest permitted mesh size is smaller. This may help to explain the extreme values of up to 20 per cent discards in some years. 57

62 between 3 per cent (low estimate) and 10 per cent (high estimate) of the quantity fished in 2004 and The quantity fished is placed in this estimate at the average of the lowest and the highest estimated quantities in Table 5, i.e. ( )/2 tonnes = tonnes in 2004 and ( )/2 tonnes = tonnes in For 2004, the low discard will be x 0.03 tonnes = 9795 tonnes, and the high estimate x 0.10 tonnes = tonnes. The estimates for 2005 are x 0.03 tonnes = tonnes and x 0.10 tonnes = tonnes. Third-party vessels cod fishing in the Barents Sea proceeds largely with trawls, and the largest quantity is taken in the western ocean areas. In this investigation it is therefore assumed that the average discard percentage from third-country vessels is approximately the same as from Norwegian cod trawlers in other words, somewhere between 2 per cent 84 and 6 per cent. The quantity fished by third-party vessels is set at the average of highest and lowest estimated quantities (see section 4.2.4) i.e. ( )/2 tonnes = tonnes in 2004 and ( )/2 tonnes = tonnes in For 2004, the low discard estimate will be x 0.02 tonnes = 1330 tonnes, and the high estimate x 0.06 tonnes = 3990 tonnes. The figures for 2005 will be x 0.02 tonnes = 1250 tonnes and x 0.06 tonnes = 3750 tonnes. The lowest estimate for all nations discards in 2004 will then be tonnes = tonnes, and the highest estimate for the same year will be tonnes = tonnes. Corresponding estimates for 2005 will be ( ) tonnes = tonnes and tonnes = tonnes. Rounded off to the nearest 1000 tonnes, the highest and lowest estimates for all nations discards will thus be tonnes and tonnes, respectively, for 2004, and tonnes and tonnes, respectively, for Cod catches in the Barents Sea Loophole by fishing vessels under flags of convenience Since 1999, when Norway and Russia entered into an agreement with Iceland which brought to an end the unregulated Icelandic cod fishing in the Barents Sea (cf. section 1.2.2), unregulated catches in the Loophole have been limited to what at times has been fished by trawlers under flags of convenience. When these vessels turn up in the Barents Sea, the Coastguard has attempted to monitor their activities, although as a rule it has not been possible to intervene. As far as capacity has allowed, attempts have been made to estimate the quantity of cod taken by the individual vessel through physical observations of the catches taken on board. In 2006, the Institute of Marine Research made an overview of the Coastguard s estimates of cod catches in the Loophole by vessels operating under flags of convenience in These estimates were presented at the meeting in April 2006 of the Arctic Fisheries Working Group of the International Council for the Exploration of the Seas (ICES), at which the basis was 84 The average of the lowest discard percentage for factory trawlers (1 per cent) and other trawlers (3 per cent), cf. Table 5. 58

63 prepared for advice on cod quota-setting for As a result, an extra 2000 tonnes was added to the working group s estimate of total Barents Sea cod catches in 2005 (cf. Table 6 below). Table 6 The Coastguard s observations of cod catches taken in the Loophole in 2005 by vessels under flags of convenience 85 Vessel Flag state Fishing periods Cod catches (tonnes round weight) Murtosa Togo Kabou Togo Kergulen Kergulen Island Gideon Dominican Republic Not available Total 1910 In this investigation, the lowest probable estimate for catches by vessels under flags of convenience in 2005 is accordingly set at 1900 tonnes. The highest probable estimate is set at twice that amount 3800 tonnes. This is because, first, the Coastguard is unable to monitor this activity regularly and, second, the Coastguard s estimates are based purely on visual observation of some of the catches. In the absence of estimates for 2004, the same estimates are used for this year. Rounded off to the nearest 1000 tonnes, the lowest and highest estimates for catches by vessels operating under flags of convenience are thus set at 2000 tonnes and 4000 tonnes, respectively, for both 2004 and Removal of cod through tourist and recreational fishing in Norway that is not subject to quotas In this investigation, the estimation of cod taken through tourist and recreational fishing is based on a compilation SINTEF Fisheries and Aquaculture have made by drawing on various publications, government reports and statistics. 86 The term recreational fishing is used for various types of fishing for the purpose of providing food, sport or recreation. It also covers fishing for commercial purposes when the fishermen are not registered as professional fishermen. Recreational fishing in the sea by foreigners is called tourist fishing. Tourist and recreational fishing is not subject to quotas and only those catches that are sold through the sales organisations are registered in the Ministry of Fisheries landing statistics. However, these catches constitute a small proportion of the total catches in tourist and recreational fishing. It must be stressed that tourist and recreational fishing in Norway is fully legal fishing, even though it is not subject to quotas. 85 Nedreaas, Kjell H. (2006): Some information about unreported landings of cod fished in the Barents Sea loop-hole, and the Norwegian Coastguard inspections and penalties in Working document # 5, ICES Arctic Fisheries Working Group, Copenhagen, April The presentation in this section is based on this summary (SINTEF Fisheries and Aquaculture s report no. SFH 80 F of 2 October 2006). 59

64 Recreational fishing The quantity of cod taken in recreational fishing north of 62ºN which was delivered to the sales organisations for sale varied in between 1000 and 2000 tonnes per year. As Table 7 shows, the catch in 2004 was 1955 tonnes, while in 2005 it was 1146 tonnes. Table 7 Recreational fishing for cod north of 62ºN which was sold through the fishermen s sales organisations Year Quantities (tonnes) Source: Directorate of Fisheries, Hallenstvedt and Wulff estimated total recreational fishing for all species of fish in the sea in Norway at tonnes, consisting of tonnes in each of the regions Eastern Norway, Western Norway and Central Norway, and tonnes in Northern Norway. 87 This estimate is based on two questionnaires conducted at different times in 2003, with a representative selection of 1000 persons. The respondents were asked about the number of fishing trips a year and catch quantities per trip and in the course of the year. These data have been compared with data from other surveys of time use carried out as part of Statistics Norway s quality of life surveys and time use surveys. SINTEF estimates that fishing north of 62ºN corresponds approximately to what is caught in Northern Norway and Central Norway, i.e. about tonnes or 58 per cent of total recreational catches. In the light of a memo from the Institute of Marine Research 88, it is furthermore assumed that cod accounts for about 50 per cent of this quantity, i.e. approximately tonnes per year. This figure includes catches from recreational fishing that are registered with the sales organisations. Surveys of food consumption are another possible source of data for estimating catches in recreational fishing. Consumption of self-caught fish and fish received as a gift has been estimated at about tonnes per year. 89 This is close to the estimate of tonnes for total recreational catches in the sea. Tourist fishing Several studies have been made of tourist fishing in Norway. Hallenstvedt and Wulff concluded that tourist fishing in the sea accounts for tonnes of catches annually for Norway as a whole. 90 If it is assumed that the catches are distributed in the same 87 Hallenstvedt, Abraham and Ivar Wulff (2004): Fritidsfiske i sjøen 2003 [Recreational fishing in the sea 2003]. Norwegian College of Fishery/University of Tromsø. 88 Nedreaas, Kjell H. (2005): Short note about tourist- and recreational fishing in Norway. Institute of Marine Research, Arctic Fisheries Working Group. 89 Hallenstvedt, Abraham and Ivar Wulff (2004): Fritidsfiske i sjøen 2003 [Recreational fishing in the sea 2003]. Norwegian College of Fishery/University of Tromsø. 90 Hallenstvedt, Abraham and Ivar Wulff (2001): Fisk som agn. Utenlandsk turistfiske i Norge [Fish as bait. Foreign tourist fishing in Norway]. Report from a joint project, the Norwegian Fishermen s Association and the Norwegian Tourist Board. Norwegian College of Fishery/University of Tromsø. 60

65 way north and south of 62ºN as assumed for other recreational fishing, and that cod accounts for approximately 50 per cent of the catch north of 62ºN, the cod portion will be between 3000 and 3750 tonnes. Other studies have arrived at a lower estimate. A report from Cap Gemini Ernst & Young estimates tourist fishermen s total annual catches for the whole of Norway at between 6000 and 9000 tonnes, for all types of fish combined. 91 These estimates are also quoted in Storting Report no. 19 ( ) concerning the scale of tourist fishing in Norway. If the same assumptions are made about the distribution of the catch north and south of 62ºN and the proportion of cod in the catches, tourist fishermen s catches of cod north of 62ºN can be estimated at between 1500 and 2250 tonnes. In 2005, the Norwegian Centre for Transport Research performed a study using extensive data from the centre's survey of visitors in 2004, which consisted of a questionnaire survey of foreign tourists who left Norway by car. 92 The centre has data for the number of tourists who arrive in Norway by car in the different seasons of the year. They also have responses to a questionnaire to determine the percentage of tourists who fish in the sea, the number of fishing tourists per group of travellers, catches (kilos of fillet) per group and conversion factors from fillet weight to round weight. The centre concluded that the annual catch from tourist fishing is about 1400 tonnes of fillet or 4200 tonnes round weight. This is equivalent to 5 kg of fillet or 15 kg fish (round weight) per fisherman per year. In a study carried out for the Norwegian Hospitality Association 93, Essens Management extended the centre s report to include tourist fishermen who travel in other ways. They estimate that 20 per cent of fishing tourists come to Norway by other means than cars. In the light of this information - and using a somewhat higher conversion factor from fillet to round weight - the total catch for all kinds of fish caught by tourists is estimated at 5800 tonnes. Making the same assumptions as previously about the catch distribution north and south of 62ºN and about the share of cod in catches north of 62ºN, the catch quantity in tourist fishing for cod north of 62ºN will be about 1450 tonnes. There are a number of sources of error in the data underlying the different estimates of tourist and recreational fishing. There may be various motives for both over- and under-reporting of catches, depending on which business interest the case is being viewed in relation to. Tourist and recreational fishermen may also fish selectively for particular species, and the yield per kilo round weight may be lower than that indicated by the official conversion factors. In order to limit tourist fishing, a regulation of 1 June 2006 prohibits the removal from Norway of more than 15 kg fish or fish products per person, including processed products such as fish fillet, within a 24-hour period. Fish or fish products bought in Norway are not covered by this rule if it can be documented that the fish or fish products were purchased from a registered business, or if such purchase is regarded as highly probable for other 91 Cap Gemini Ernst & Young (2003): Vurdering av turistfiske som inntektskilde i Norge. Hvilke inntekter gir turistfisket sammenliknet med yrkesfisket? [Evaluation of tourist fishing as a source of income in Norway. What income does tourist fishing generate compared with fishing as an occupation?] Study commissioned by the Norwegian Hospitality Association. 92 Utenlandske bilturisters fiske i saltvann i Norge i 2004 [Foreign motorists fishing in salt water in Norway in 2004]. Institute of Transport Economics Report 788/ Essens Management (2005): Har turistfiske innvirkning på bestanden av kysttorsk? [Does tourist fishing affect the stock of coastal cod?]. Study commissioned by the Norwegian Hospitality Association. 61

66 reasons. In addition to the export quota, one whole trophy fish, irrespective of weight, may also be taken out of the country. 94 Total catch in tourist and recreational fishing If the different estimates for cod catches north of 62ºN in tourist fishing are added together, the estimates range from about 1500 to 3750 tonnes. Combined with the catch from recreational fishing of about tonnes, the total cod catch for tourist and recreational fishing north of 62ºN may be of the order of tonnes. 95 In this investigation, these figures are regarded as minimum and maximum estimates, respectively, for Norwegian tourist and recreational fishing. 4.3 Over-fishing of cod in the Barents Sea in 2004 and Summary of the uncertainty associated with the estimates As indicated in the presentation in section 4.2, the uncertainty of the estimates varies from component to component: The estimation of Russian vessels cod catches is based on thorough analyses which have been developed over a number of years by the Directorate of Fisheries, and on the Institute of Marine Research s and SINTEF s alternative analyses based on the same data. The directorate is of the opinion that these estimates are conservative, and it is therefore assumed that the catch has been at least as high as the lowest estimates indicate. The uncertainty of the estimates is particularly associated with the degree of processing of fish that is transported from the Barents Sea. This is a factor that can have a major impact, as reflected in the large gap between the lowest and highest estimates for the Russian catch. It should also be mentioned that the Directorate of Fisheries and the Institute of Marine Research have collaborated on calculating overfishing in 2006, and by using an agreed method, they have estimated that overfishing in 2006 lies in the range tonnes. 96 Tourist and recreational fishing in Norway (particularly tourist fishing) has also been relatively thoroughly studied in recent years. There is some uncertainty regarding the total catch, but it is less than for the estimates for other kinds of unregistered fishing, as reflected in the moderate range between highest and lowest estimate. This can be partly attributed to the fact that these are completely legal activities, so those involved should have no special motives for providing incorrect data in responses to questionnaires, for example. By contrast, the estimates of unregistered removal associated with Norwegian and thirdparty vessels fishing, fish discards, and unregulated fishing by vessels flying flags of convenience must be regarded as very uncertain. The uncertainty, as with the Russian 94 Cf. Regulation on quotas for export from Norway of fish and fish products from sports fishing, 1 June This quantity consists of coastal cod and north-east Arctic cod. On the basis of Nedreaas (2005) and Hallenstvedt & Wulff (2004), SINTEF estimates that the distribution in recreational fishing is about 80 per cent coastal cod and about 20 per cent north-east Arctic cod. If the same distribution is assumed for tourist fishing, about tonnes of the total of will be north-east Arctic cod, and the remainder coastal cod. Recreational cod fishing is coastal, and takes place mainly in the summer half year when coastal cod is most readily available. 96 Appendix to a letter from the Norwegian Ministry of Fisheries and Coastal Affairs, received 18 April

67 removal, is particularly associated with the maximum estimates. In the case of Norwegian and third-party vessels, this is primarily because few if any systematic attempts have been made to calculate this removal. Estimating unregistered removal by Norwegian vessels also involves major methodological difficulties, because the fleet in question is large and varied, with corresponding variation in ways of circumventing the rules. A number of studies of discards have been carried out, but the existing material is very fragmentary, and no estimates have been made of the total quantity of cod that is discarded in connection with fishing. 97 Estimates of removal by vessels under flags of convenience are based solely on the Coastguard s rather sporadic observations, but the total removal here is assumed to be moderate General conclusions Although the investigation shows that there is great uncertainty associated with the estimates, there is good reason to assume that Russian vessels unregistered cod catches totalled more than tonnes in The uncertainty is primarily related to how much over tonnes the real figure lies. By aggregating the average of lowest and highest estimate for each of the components that together make up cod catches in the Barents Sea north of 62ºN, a total catch of tonnes more than the total quota is arrived at for However, the uncertainty associated with the calculations indicates that caution should be exercised with regard to maintaining that this is the probable level of overfishing. By aggregating the lowest estimates for the individual components, one arrives at a catch of tonnes over quota. This cautious estimate of overfishing nevertheless indicates that more than every fourth cod that is removed from the Barents Sea is over and above the fixed quota. The large divergence between lowest and highest estimates for a number of the components involved in the calculation reveals inadequate knowledge of the scale of the total catch. This is not unique to the Barents Sea cod catch, where considerable progress has been made in a global perspective in the work to gain an overview of the unreported portion of catches. In view of the important part fishery statistics (including data about catches) play in researchers calculations of stocks and advice on quota-setting, the question that arises is whether compiling data on unreported fishing and the work of refining methods for calculating the different types of unregistered catches should be given higher priority. 97 Valdemarsen and Nakken s summarising analysis only covers Norwegian fisheries. 63

68 5 Topic 2: Implementation of decisions taken by the Fisheries Commission The purpose of the audit question concerning the implementation of decisions taken by the Joint Norwegian-Russian Fisheries Commission is to investigate whether, and in the event how, the parties implement these decisions in their respective countries. For the Norwegian part of the investigation, this will firstly imply charting and describing the Norwegian system for implementing relevant Commission decisions in Norwegian law and, secondly reviewing how selected Commission decisions from the Commission s 33 rd session have been incorporated in Norwegian legislation. Following a presentation of the audit criteria that will be used in this chapter, section 5.2 provides a general description of the procedures the Norwegian authorities follow when the Commission s decisions are to be incorporated in national legislation. Sections 5.3 and 5.4 describe how selected Commission decisions in the area of fisheries control have been implemented in the legislation and followed up in practice. Specifically, the decisions concern a set of new provisions concerning trans-shipment of fish at sea, which were decided upon at the Commission s 33 rd session in 2004 and formulated more strongly at the 34 th session the following year. The main focus of sections 5.5 and 5.6 is on the implementation of decisions regarding the collaboration between the Norwegian and Russian agencies with responsibility for surveillance of fishing. 5.1 Audit criteria At the annual meetings of the Joint Norwegian-Russian Fisheries Commission a protocol is drawn up with detailed provisions concerning fishing and fisheries management for the following year. This protocol stipulates the quotas set for jointly managed stocks, how they are to be distributed between Norway, Russia and third countries, and which technical regulations for fishing the parties have agreed on. In recent years, Commission meetings have focused increasingly on the question of control, and one of the points in the protocol concerns which measures the enforcement agencies of the two countries should implement individually or jointly to ensure that fishermen abide by the rules and regulations. After the meetings, the parties must ensure that the decisions in the protocol are incorporated in the national legislation of the two countries. 98 Norway and Russia have undertaken to establish rules and conditions for the conduct of mutual fisheries relations 99 and to ensure that their citizens and fishing vessels abide by the provisions of the fisheries agreement of 1976 and other regulations concerning fishing. 100 The investigation assumes that there are routines for deciding how the obligations decided upon are to be implemented in Norwegian law. 98 This applies to decisions that require a legal basis in order to be implemented in practice and enforced in the following fishing year, cf. description in section Agreement of 1976 between Norway and Russia on mutual fisheries relations, introductory text. 100 Ibid, Article 5, Section 1. 64

69 At the Commission s 33 rd session, the parties decided to introduce a duty to report for fishing and transport vessels involved in trans-shipment at sea 101, and at the Commission's 34 th session it was decided that the scope of these measures should be extended and full implementation ensured. The investigation assumes that these decisions are incorporated into Norwegian acts and regulations and implemented in practice by Norway. 5.2 Procedure for incorporating Commission decisions in legislation and regulations Each year, Norwegian fisheries authorities enter into bilateral fisheries agreements with other states which entail obligations for Norway and the other state. In addition, Norway undertakes obligations pursuant to decisions taken in regional fisheries organisations and multilateral organisations (UN bodies etc.). The agreements signed may be very different in scope and content, but the implementation of the obligations nevertheless follows the same pattern. After the agreements are signed or a decision has been taken, for example in the Joint Norwegian-Russian Fisheries Commission, the agreement or decision is reviewed for the purpose of follow-up by Norway. First, it has to be decided whether the individual obligation arising from the agreement is such that follow-up of the obligation pursuant to the legality principle requires a legal basis in an act or regulation. According to the legality principle, any exercise of government authority that infringes upon the rights, including right of ownership, and freedoms of citizens must be authorised by statute. 102 All obligations that concern regulation of the activities of fishermen therefore require such statutory authorisation in principle. In some cases, it will be possible to follow up directly the obligations the administrative agencies of Norway and other states undertake in relation to one another, while in others a legal basis will also be required. This will depend on the nature of the obligation. If it is concluded that follow-up of a given obligation requires a legal basis in an act or regulation, the Norwegian authorities will look at the existing rules and regulations and consider whether or not there is already a sufficient legal basis to enable the obligation to be discharged without having to make regulatory amendments. In many cases it may be concluded that there is no need for a change in regulations. This may be the case, for example, when the obligation that has been undertaken is already covered by Norwegian law. If the necessary legal basis does not exist in the national legislation, the next step is to put it in place. If there is statutory authorisation for laying down regulations for implementing rules that form a legal basis for the obligation in Norwegian law, such regulations will be laid down. Regulations of this type are normally laid down by the Ministry of Fisheries and Coastal Affairs or the Fisheries Directorate, but in some cases the competence to issue rules may lie with the King in Council. For the ministry or the directorate to be able to issue the regulations, authorisation to do so must have been delegated either through legislation or through a delegation resolution. If the introduction of new regulations or an amendment to regulations is regarded as being of a nature that requires it to be circulated for comments, the 101 Protocol of the 33 rd session of the Joint Norwegian-Russian Fisheries Commission, item (Definition of the principle of legality in Norwegian.) 65

70 draft regulations will be circulated to affected organisations and agencies so that they have the opportunity to express views on the matter before the new or amended rules are adopted. This may include other affected ministries, regional authorities, fishermen s organisations (the Norwegian Fishermen s Association etc.), sales associations, the Coastguard etc. In some cases, the obligation may be of such a nature that a statutory amendment is required in order to put the necessary regulations in place. In such case, a bill must be drafted (Odelsting Proposition) and submitted to the Storting for a decision. When the Storting has adopted the legal basis, regulations are laid down with authorisation in the amended or new act, unless follow-up of the resolution is now authorised directly by the new act. However, it is rare for Norway to undertake obligations in the annual fisheries negotiations which do not already have statutory authorisation in Norwegian law. When the obligation has been included in the legislation, Lovdata 103 is notified immediately, and Lovdata arranges for the announcement of the (amended) regulations. The regulations are now legally binding and enter into force from the date specified in the regulations themselves. The formal basis for the sanctioning of infringements is thereby in place. As a rule, the regulations contain a reference to the section of the act pursuant to which any infringements are penalised, and the penalty framework will be set out in this section. In addition to announcement in Lovdata, the regulations will be announced in fishery publications in the form of a J-melding (legal notice) from the Directorate of Fisheries. The legal notice does not have the same legal status as announcement via Lovdata, but is a good source of up to date information regarding the regulations that are currently in force and the amendments made. Legal notices are published on To ensure that affected parties are made aware of the regulatory amendment, a press release is normally written as well. In some cases, an announcement will also be broadcast over the radio. The regulatory amendment will also be mediated in an appropriate manner to the bodies that are to implement and monitor the measure, including the Coastguard and the Directorate of Fisheries (unless the directorate itself is responsible for the amendment). If the regulations entail regulatory changes that vessels from other states also have to observe, relevant states will be notified via diplomatic channels. In a parallel process, Norwegian authorities will often inform the fisheries authorities of other states directly, so that information about the regulatory amendment reaches users as fast as possible. 5.3 Implementation of resolutions on new trans-shipment procedures in Norwegian legislation As described in Chapter 4, in the late 1990s Russian fishing vessels increasingly delivered their catches to third countries directly or via trans-shipment to transport vessels. This created new challenges for the agencies appointed to monitor fishing. In 2000, Norwegian and Russian enforcement authorities discovered by comparing information that a large 103 Lovdata is a private foundation established by the Ministry of Justice and the Faculty of Law at the University of Oslo. The purpose of Lovdata is to establish and operate information systems relating to legislation. Lovdata plays a key role in the management of the information system, for example through ongoing consolidation of the entire body of Norwegian legislation (including incorporating amendments to the texts of acts and regulations). 66

71 proportion of the trans-shipment operations were not reported to Russian authorities in accordance with the regulations. 104 The same autumn, the Permanent Norwegian-Russian Committee for Management and Enforcement Co-operation within the Fisheries Sector 105 stated that the parties had noted that extensive trans-shipment takes place at sea, and agreed that this activity is not subject to proper control by the parties. 106 At the proposal of the Permanent Committee, new rules for reporting in connection with trans-shipment at sea and subsequent landing of fish were adopted at the Commission meeting in 2004 (the 33 rd session). The purpose was to make it easier for Norwegian and Russian authorities to monitor trans-shipment activities, and accordingly also the total amount of fish removed. The new provisions were placed in item 12.5 of the protocol from the 33 rd session and repeated in the protocol from the 34 th session, where the parties emphasised that it was necessary to ensure that the rules were fully implemented. The reporting arrangement was to be introduced before 1 January 2005 and contain the following requirements: 107 Fishing vessels shall send notice of trans-shipment 24 hours at the latest before transshipment starts. Vessels that receive catches shall report the trans-shipment one hour at the latest after trans-shipment has taken place. The report shall contain information about the time and position of trans-shipment and information about the vessel and who has received the catch, and the amount of the transshipped catch specified per species in round weight. The receiving vessel shall also provide information about where the catch is to be landed, 24 hours at the latest before landing takes place. Fishing vessels intending to land fish in third countries shall on leaving the economic zones of the respective countries provide information about where the catch is to be landed. The protocol also prescribed that the parties should introduce a ban on trans-shipment of fish to vessels that do not have the right to sail under a NEAFC flag 108 or the flags of states that do not have status as NEAFC cooperative non-contracting parties. The parties also decided to introduce a duty of traceability via the system for satellite-based monitoring of vessels for transport vessels that receive fish, in the same way as for fishing vessels. 104 Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November The Permanent Committee is a Norwegian-Russian committee under the Fisheries Commission that meets between the annual sessions for discussions and to draw up proposals for measures for cooperating on the regulation and control of fisheries. 106 Minutes of a meeting of the Permanent Committee for Management and Enforcement Co-operation within the Fisheries Sector in Henningsvær, October 2000, item Protocol of the 33 rd session of the Joint Norwegian-Russian Fisheries Commission, item NEAFC the North East Atlantic Fisheries Commission has jurisdiction over the areas outside the 200- mile zones, including the Norwegian Sea Loophole and the Barents Sea Loophole. 67

72 The new trans-shipment provisions imposed new duties on fishermen, and as such can be said to infringe upon the rights, including the right of property, and freedoms of citizens. They are accordingly of the type of provisions that, pursuant to the legality principle, require authorisation in Norwegian legislation (see section 5.2). The Directorate of Fisheries states that none of the new provisions entailed any amendment of existing acts. Only regulatory amendments were necessary. 109 Nonetheless, the work of putting these in place took some time, and the new provisions were not incorporated in the regulations by 1 January 2005 as the wording of the protocol appears to indicate was the intention. The duty to report of fishing and transport vessels involved in trans-shipment at sea and/or subsequent landing of catches, and the ban on trans-shipment to vessels that do not have a right to sail under the flags of NEAFC (cooperative) countries, were introduced during the winter and spring of 2005 through four regulations/amendments to regulations. These apply to foreign vessels in the Norwegian Economic Zone, Norwegian vessels irrespective of area of jurisdiction 110, Norwegian and foreign vessels in the fisheries protection zone around Svalbard 111 (the Svalbard Fisheries Protection Zone)and Norwegian and foreign vessels in territorial waters around Svalbard. 112 The regulations that apply to Norwegian vessels entered into force on 23 February 2005, the others on 1 May All four regulations/amendments to regulations have identical points on reporting of transshipment and port calls. In the point on reporting of trans-shipment it is stated that transshipment may take place to vessels from EU member states, Russia, the Faroe Islands, Greenland and Iceland 113, and to vessels from NEAFC cooperative non-contracting countries. It states further that fishing vessels that are going to trans-ship fish must send the trans-shipment report 24 hours at the latest before trans-shipment, while recipient vessels must send such notification one hour at the latest after trans-shipment has been completed. This is followed by a detailed overview of the information the notification must contain, and this covers all the requirements of a trans-shipment notification that are listed in item 12.5 of the protocol from the 33 rd session. The point on notification of port calls establishes that vessels that have received a catch from another vessel must send such notification 24 hours at the latest before landing takes place. 114 Here, too, a detailed overview is provided of the information that must appear, including landing port, landing time and the quantity and species to be landed. The provision to the effect that transport vessels are also to be subject to a duty of traceability was also introduced through four regulatory amendments. The regulations that were amended 109 Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November J , Regulations relating to the reporting of catches for Norwegian vessels; adopted and entry into force 16 February 2005; legal notice dated 23 February J , Regulations amending the regulations relating to regulatory measures for fishing in the fisheries protection zone around Svalbard; adopted 17 March 2005 and entry into force 1 May 2005; legal notice dated 17 March J , Regulations relating to reporting and control when fishing in the territorial and internal waters of Svalbard. 113 In other words, all NEAFC member countries. 114 Thus the requirement will apply not only to vessels that land in third countries, but to all vessels that land trans-shipped fish, irrespective of the landing port. 68

73 concern the duty of traceability for Norwegian vessels in all areas of jurisdiction 115, for foreign vessels in the Norwegian Economic Zone and the Jan Mayen Zone, 116 for Norwegian and foreign vessels in the Svalbard Fisheries Protection Zone, 117 and for Norwegian and foreign vessels in territorial waters around Svalbard. 118 In all cases, the amendment consists of a supplement to Section 1, so that the regulations will also apply to transport vessels that receive catches. The regulatory amendment that applies to Norwegian vessels entered into force on 21 February 2005, the others on 1 March All the new regulations were published as individual legal notices. The procedure for submitting reports of trans-shipment and port calls, respectively, is set out in the regulations, which include a form for each of the two types of reports. The individual regulations contain a separate point on penalties in which reference is made to the act and section of the act used to penalise infringement of the regulations. 5.4 Follow-up and enforcement of the new trans-shipment regulations According to the Coastguard, fishermen comply with the new trans-shipment regulations on the whole. No infringements of these rules were registered in the Norwegian Economic Zone in either 2005 or However, trans-shipment activity in the Norwegian Economic Zone is relatively moderate, and Norwegian and third-country vessels trans-ship fish to a very limited degree. In the territorial waters around Svalbard there were some problems concerning compliance with the new regulations in the period immediately after the regulations had entered into force. Russian vessels did not always abide by the rules when they engaged in trans-shipment in this area. 120 A considerable amount of trans-shipment takes place just here, because many captains on Russian transport vessels prefer to take shelter in the lee of Bear Island when they take on fish. 121 During this initial period, there was no direct intervention against offenders, but on 22 October 2005 the Coast Watch vessel KV Nordkapp conducted an inspection after observing that the Russian vessel Kapitan Gorbachev was trans-shipping to the transport vessel Dimitri 115 J , Regulations amending the regulations relating to satellite-based monitoring of the activities of fishing and hunting vessels; adopted and entry into force on 17 February 2005; legal notice dated 21 February J , Regulations amending the regulations relating to satellite-based monitoring of foreign fishing vessels in the Norwegian Economic Zone and in the fishery zone around Jan Mayen; adopted 21 February 2005 and entry into force 1 March 2005; legal notice dated 21 February J , Regulations amending the regulations relating to satellite-based monitoring of fishing and hunting vessels in the fisheries protection zone around Svalbard; adopted 17 February 2005 and entry into force 1 March 2005; legal notice dated 17 February J , Regulations amending the regulations relating to satellite-based monitoring of fishing and hunting vessels in Svalbard s territorial waters and internal waters; adopted 17 February 2005 and entry into force 1 March 2005; legal notice dated 21 February Telephone interview with Coastguard Squadron North, 25 January Telephone interview with Coastguard Squadron North, 25 January Statusrapport for 2005 Russisk fiske av torsk og hyse/omlasting på havet [Status report for 2005 Russian cod and haddock fishing; trans-shipment at sea]. Directorate of Fisheries, March However, the number of trans-shipment operations at Bear Island declined appreciably in 2005, while trans-shipment rose correspondingly in the Russian Economic Zone and the Grey Zone. 69

74 Pokramovitch in the vicinity of Bear Island. It was discovered that the trans-shipment rules were not being followed, and this time the Norwegian authorities chose to enforce the rules. 122 The vessels received a penalty notice from the Governor of Svalbard, and after a bank guarantee had been posted for the fine they were allowed to leave. 123 However, the shipping companies did not admit guilt, and there was a court case in January The case was heard by the Nord-Troms District Court, and ended initially with acquittal for both vessels. The new regulations could not be applied to the transport vessel because transport vessels must send a report within one hour of completion of trans-shipping, and at that time the vessel had already been arrested. 124 The regulations could in principle be applied to the fishing vessel, but the court concluded that there was no adequate legal basis for these regulations in existing legislation. The public prosecutor appealed the case on the grounds of failure to report trans-shipment. In February 2007, the Court of Appeal overturned the District Court s acquittal with reference to the fact that there is a legal basis for the regulations in question in a Royal Decree of 4 March After the arrest of the two vessels, the Coastguard noted that more and more vessels began to comply with the rules. Russian vessels also directed a number of questions to Coastguard Squadron North with respect to how the rules functioned in practice. Despite the preliminary outcome of the court case in question, there have been no problems concerning compliance with the new regulations in 2006 similar to those experienced initially. Nor have there been more situations involving enforcement. 125 In the Svalbard Fisheries Protection Zone, Russian vessels generally fail to comply with the reporting rules laid down by the Norwegian authorities, and the trans-shipment regulations have been no exception Follow-up of the Memorandum of Understanding (MoU) on control cooperation in fisheries 127 The need for cooperation on operational control between Norwegian and Russian fishing authorities appeared on the Commission s agenda for the first time in The background was Russian vessels increased deliveries of fish to Norway and the ensuing control problems (cf. Chapter 4). A separate working group (the precursor to the Permanent Committee) was appointed at the Commission meeting in 1992, and was tasked with discussing possible measures. A number of proposals including that the parties should exchange landing 122 Telephone interview with Coastguard Squadron North, 25 January Appendix to letter of 16 March 2007 from the Ministry of Defence. 124 The public prosecutor held that the transport vessel should have sent a report of fishing start before transshipment, with reference to the fact that the term fishing in this connection also covers related activities, such as trans-shipment of fish. However, the court regarded this as stretching the concept of fishing too far. 125 Telephone interview with Coastguard Squadron North, 25 January Ibid. 127 The descriptions of the contents of the MoU on Control Cooperation in this section are based on the actual text of the document. 70

75 information were submitted in May and adopted at an extraordinary Commission meeting in June. 128 Since then, the Permanent Committee has functioned as a forum for general discussion of control cooperation, while operational cooperation has been based on direct contact between the agencies involved in Norway and Russia. At the Commission meeting in Tromsø in 2000, the bilateral control cooperation was formalised through the signing of a special Memorandum of Understanding (MoU) on Control Cooperation. This framework agreement was entered into between the Directorate of Fisheries, the Coastguard and their then Russian counterparts: Murmanrybvod 129, which was responsible for inspections on land, and the Border Service 130, which was responsible for inspections at sea. In 2005, the MoU on control cooperation was revised in connection with changes in the Russian fisheries management. The supervisory service Rosselkhoznadzor 131 took over from Murmanrybvod. Rosselkhoznadzor has responsibility for land-based inspections of Russian fishing in the Barents Sea and Norwegian Sea. The legal basis for the MoU on Control Cooperation is provided by the bilateral fisheries agreements of 1975 and The introduction to the document states that the cooperating agencies have agreed to strengthen cooperation in the areas that are subsequently listed in order to ensure better management of the fishery resources in the areas covered by the agreements. The document also refers to six general areas of cooperation, each with specific sub-points, with a description of what the cooperation is to comprise. It is largely a matter of cooperative arrangements and routines that had been laid down in protocols and separate agreements during the years before the MoU was signed. The main provisions in the six areas of cooperation are reviewed below, area by area, and for each area a description is provided of how the provisions have been complied with. 1. Routine exchange of information The MoU stipulates that the parties shall routinely exchange information on the following: a) Opening and closing of fishing grounds b) Satellite tracking data c) Fish landings For each of these, reference is made to existing arrangements and forms to be completed for exchange of information, laid down in Commission protocols and other official documents from 1998 (opening/closing of fishing grounds), 2000 (satellite tracking) and 1993 (landing information). 128 Hønneland, Geir (2006): Kvotekamp og kyststatsolidariet: Norsk-russisk fiskeriforvaltning gjennom 30 år [Quota struggles and coastal state solidarity: Norwegian-Russian fisheries management over 30 years], pp. 51 ff. 129 A regional agency under the then State Committee for Fishing. Full name: Murmansk Regional Directorate of the Directorate for the Protection and Reproduction of Fish Resources and Regulation of Fishing under the Russian Federation s State Fisheries Committee. 130 This too was a regional department: the Arctic Regional Directorate of the Russian Federation s Border Service. 131 The Murmansk Department of Rosselkhoznadzor, which stands for the Federal Veterinary and Phytosanitary Supervisory Service. The agency has general responsibility for control and supervisory functions which come under the Ministry of Agriculture, and this ministry is also responsible for fisheries. 71

76 a) According to the Directorate of Fisheries, the Norwegian party shall forward information about decisions concerning the opening/closing of fishing grounds each time such a decision is taken. All information concerning the background to the decision, which is to be exchanged according to agreement, is to be forwarded at the same time. The directorate has not received information about closing of fishing grounds from Russia since summer 2003, and prior to this the last time such information was received was However, the reason is not so much unwillingness to forward information as that the Russian control agencies have not used this type of measure (closing of fishing grounds) in recent years. 132 The Russian party has not as a rule sent background information together with the decisions. 133 b) Satellite tracking information is exchanged as agreed at the Commission s 28 th session in June The exchange involves the Norwegian party forwarding tracking information received from Norwegian vessels in Russian areas of jurisdiction to the Russian party, and the reverse. The arrangement has functioned well both ways, and the parties have agreed that it should be updated through the exchange of full and ongoing satellite tracking information regarding their respective vessels in the entire Barents and Norwegian Sea area in the future. 134 c) According to the Directorate of Fisheries, information about Russian vessels landings in Norway is being sent to the Russian party in the form of copies of the sales notes that are issued when the fish is sold. 135 Copies of individual sales notes are collected and forwarded monthly by telefax to Rosselkhoznadzor and Murmanrybvod. The latter also receives this information electronically. 136 The directorate does not receive similar information about Norwegian landings in Russia. 137 This is probably because Norwegian vessels only sporadically land fish in Russia. 2. Information in connection with inspections Pursuant to the MoU, the parties shall inform one another of the results of inspections of the other party s vessels, at sea or in connection with landings. The Norwegian Coastguard and the Russian Border Service are to send weekly information about inspections at sea to the inspection agencies of the other party. Similarly, the Directorate of Fisheries and Murmanrybvod/Rosselkhoznadzor, and also the Border Service (which also performs landing inspections from time to time), shall send weekly information about inspections on land. Information is also to be exchanged about infringements committed by the other party s vessels, and about penalties (warnings, reports, arrests, fines, court hearings and confiscation of fishery permits). 132 Information from the Russian SAI during the working group meeting in connection with the parallel audit in Moscow, 9 12 May from the Directorate of Fisheries, 24 January Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November The decision that the parties are to exchange full information on satellite tracking in the Barents and Norwegian Sea was taken at the 33 rd session in 2004 and repeated in the protocol from the 34 th session. Section 5.6 describes the extent to which this decision has been implemented. 135 Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November Memorandum of 16 October 2006 from the Regulatory Section: Cooperation Norway-Russia 2006 in the area of fisheries management and control in the fisheries sector from the Directorate of Fisheries, 31 January

77 In reality, the exchange of inspection information between parties has taken place regularly, but not as often as weekly. Each month, the Coastguard sends a list to the Border Service and Rosselkhoznadzor of the Russian vessels that have been inspected since the last report. Information about the outcome of the inspection is given for each vessel, i.e. whether it ended with Nothing to report, with a warning, or with arrest of the vessel. In the event of arrests, separate information is sent for each case, with a brief description of the circumstances that are the grounds for the arrest. 138 The Russian Border Service delivers information on inspections of Norwegian vessels twothree times a year, generally in connection with meetings between the parties. The Norwegian party does not feel a need to receive such information more often, as Norwegian fisheries activity in the Russian zone is limited, with the result that there are not very many inspections of Norwegian vessels in the Russian zone. In those cases where there has been an arrest, the Norwegian party has been informed of it. 139 The Directorate of Fisheries also compiles and forwards information about landing inspections of Russian vessels to the Russian enforcement authorities, and sends information about reactions in those cases where the directorate has handled the case. 140 As landings of Norwegian vessels in Russia are relatively few, such inspection information is sent from Russia less frequently. 3. Exchange of other information Pursuant to the MoU, the enforcement authorities shall inform one another of fishery activities that may give rise to suspicion of illegal circumstances that may have a bearing on the inspection work of the other parties in the collaboration. In some cases they may also ask one another for relevant inspection information. The enforcement authorities also agree to inform one another of general and specific experiences that may be of relevance for the other party, either at meetings or on an ongoing basis via telephone, or fax. According to the Directorate of Fisheries, information concerning illegal fishing activities has been exchanged by the parties on a number of occasions. The parties also discuss relevant experience at meetings of the Permanent Committee and within the framework of separate analytical meetings. The directorate s experience here is that Russia contributes on a general level. 141 The directorate feels that the collaboration has not functioned very well with respect to exchange of other relevant control information. Norwegian enforcement authorities have had difficulty obtaining answers to their inquiries, not least with respect to information about what quotas the Russian vessels have. However, the Commission protocols from the 33 rd and 34 th sessions stipulate that such information shall be exchanged monthly, and this began to function in autumn Telephone interview with Coastguard Squadron North, 25 January Telephone interview with Coastguard Squadron North, 25 January Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November For a more detailed description of how this Commission decision has been implemented, see section

78 There have not been many requests from the Russian agencies for inspection information over and above that which is routinely exchanged, but the directorate maintains that it has responded to those inquiries that have been received. 143 According to the Coastguard, the agency sends other inspection information to the Russian party as needed, whether or not there has been a specific request from the Russian party. The Coastguard also receives other inspection information from Russia, although not very often Operational measures Pursuant to the Memorandum on control cooperation, meetings shall be held between the operational leaders of the enforcement authorities once or twice as year, as needed. The surveillance is to be made more efficient through comparison of surveillance information about individual vessels or groups of vessels, including transport ships, in connection with trans-shipment at sea. The enforcement authorities are also to work on developing methods that may improve fisheries control. The parties are to exchange inspectors as observers for inspections at sea and at landings. The Coastguard and the Border Service are to exchange inspectors as observers of one another s vessels at least once a year. This takes place in the parties economic zones. The Directorate of Fisheries, Murmanrybvod/Rosselkhoznadzor and the Border Service are to exchange inspectors as observers in connection with inspections of landings from fishing and transport vessels in Norwegian and Russian ports, according to agreement. Also according to agreement, inspectors will be exchanged as observers on board vessels in connection with the opening and closing of fishing grounds. The Norwegian enforcement authorities have diverse experience of the operational cooperation. Recently there have been longer breaks between meetings at four-party level, and it has been difficult to improve the efficiency of surveillance through comparison of the Norwegian and Russian agencies information about individual vessels. The Directorate of Fisheries and the Coastguard consider that a great deal could be achieved in terms of enforcement if representatives of the Norwegian and Russian enforcement authorities could meet more often at operational level to compare such information and perform analyses. These analytical meetings used to be held regularly, but on the Russian side Rosselkhoznadzor, in particular, has stated that it has been difficult to secure budgetary resources and the necessary authorisations at top level to hold such meetings. 145 The arrangement concerning the exchange of inspectors at sea has been carried out as intended, as a rule more than once per year. 146 With regard to the exchange of inspectors as observers at landing inspections, in some years a large number of visits of Russian inspectors to Norwegian ports have been arranged, and for the most part Russian vessels have been inspected. There have been very few joint inspections in Russian ports. 147 Nor have any more visits from Russia to Norway been made recently. This appears to be partly attributable to 143 Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November For a more detailed description of how this Commission decision has been implemented, see section Telephone interview with Coastguard Squadron North, 25 January Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November 2006; minutes of a meeting of Coastguard Squadron North and the OAG, 16 August Minutes of a meeting between Coastguard Squadron North and the OAG, 16 August Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November

79 travel budget constraints on the part of the Russian organisations. According to the Directorate of Fisheries, few concrete results have emerged from these visits. The Norwegian party has therefore made it clear that it is regarded as more useful to concentrate on regular analytical meetings between the participants in the four-party collaboration. 148 There has been no exchange of inspectors in connection with the opening/closing of fishing grounds in recent years. 149 Inspection methodology has been a central topic at several joint Norwegian-Russian seminars that have been held within the framework of the control cooperation. At the Permanent Committee meeting in October 2006, a common inspection methodology was developed which is to be used by both Russian and Norwegian enforcement authorities Cooperation on control in NEAFC s regulatory area The MoU states that the Coastguard and Murmanrybvod/Rosselkhoznadzor may cooperate in NEAFC s regulatory area within the framework and according to the intentions of the enforcement regime, as found appropriate by the parties jointly. The Coastguard has cooperated with Murmanrybvod on control in NEAFC s regulatory area, but this is now four five years ago. Murmanrybvod inspectors accompanied the Coastguard s tour in the Norwegian Sea Loophole 151 and used the Coastguard vessel as the launching point for inspections on board Russian vessels. The Russian party has expressed a general interest in further joint tours, but so far there have been no specific requests Exchange of experience In conclusion, the MoU on Control Cooperation states that the Norwegian and Russian enforcement authorities agree that inspectors should exchange experience, for example by holding joint seminars at least once a year, in Norway and Russia alternately. These seminars were held regularly up to 2000, i.e. the same year that the MoU was signed. At that time, the seminars began to become repetitive, as many of the participants were at one seminar after another, and the topics under discussion tended to be very similar each time. The Norwegian party therefore took the initiative to replace the seminars with regular analytical meetings, at which it was initially intended to examine the question of transshipment. 153 A separate analytical group was established under the Permanent Committee, and joint Norwegian-Russian analyses of individual cases commenced. A joint analysis in 2001 revealed that 45 per cent of all Russian trans-shipments at sea that had been registered by the 148 Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November 2006; memo from the Regulatory Section, 16 October 2006; working memo from the Regulatory Section, 29 October 2006 Status cooperation for management and control. See also the section on exchange of experience (below) with respect to cooperation at analytical meetings from the Directorate of Fisheries, 24 January Records of a Permanent Committee meeting at Sortland, 9 13 October 2006, Appendix 3: Inspection methodology. 151 Like the Barents Sea Loophole, the Norwegian Sea Loophole is an area of international waters that is not subject to the jurisdiction of any state. 152 Telephone interview with Coastguard Squadron North, 25 January Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November

80 Coastguard had not been reported to the Russian fisheries authorities. 154 These findings triggered the Directorate of Fisheries work on annual estimates of total Russian removal of cod. The directorate expressed a wish for Russian involvement in the work on these calculations, but it did not prove possible to establish cooperation. 155 Meetings in the analytical group for individual cases gradually became less frequent, and in 2006 there were no such meetings. However, it emerges from the protocol from the 35 th session that the parties have agreed to resume the work of the analytical group on individual cases, and that meetings of this group are to be held at least quarterly in The analytical group is to compare information at vessel level in order to reveal any infringements. The parties are also to collaborate on analyses of overfishing of cod and haddock, and a separate working group is to be established for this purpose. 156 Need to update the MoU Norwegian and Russian fisheries authorities agree that the Memorandum constitutes a good basis for improved control and cooperation. Similar formulations are included in the protocols from the Commission meetings in 2004, 2005 and According to the Directorate of Fisheries, it is important that the MoU provides a formal basis for cooperation. It is also important that the various measures on which agreement has been reached, including at Commission meetings, are compiled into a readily accessible form. This is particularly useful when new members join the team, which happens quite often. 158 However, a number of decisions on fisheries control and control cooperation have been taken at Commission meetings that have been held since 2000, but have not been incorporated in the MoU. At sessions 33 and 34, in particular, there were many new provisions in the protocol. The Permanent Committee has therefore discussed the need to update the MoU. 159 At the Commission meeting in 2006 (35 th session) the Permanent Committee was formally briefed to propose the necessary changes and additions to the MoU. 160 The new provisions that were added to the protocols of the 33 rd and 34 th sessions are largely intended to make control cooperation more efficient. The next section considers the extent to which these provisions have been implemented. 154 Havets ressurser 2006 kap. 4.4 Overfiske I Barentshavet [The ocean s resources 2006, Chapter 4.4 Overfishing in the Barents Sea], pp. 169 ff, Sigbjørn Ulvatn, Tor Glistrup, Asgeir Aglen and Bjarte Bogstad. 155 Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November Protocol of the 35 th Session of the Joint Norwegian-Russian Fisheries Commission, item 12.6, p The formulation constitutes a separate item (item 12.3 in the protocols from 2004 and 2005, item 12.4 in the protocol from 2006) with the heading Experience of the Memorandum on cooperation arrangements between the parties enforcement authorities. 158 Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November Records of a Permanent Committee meeting at Sortland, 9 13 October 2006, page Protocol of the 35 th session of the Joint Norwegian-Russian Fisheries Commission, item 12.4, p

81 5.6 Follow-up of decisions relating to closer Norwegian-Russian control cooperation The new provisions on fisheries control and control cooperation are to be found under item 12.5 in the protocols from the 33 rd and 34 th sessions. Much of the text is the same in both protocols. At the 34 th session, the parties established that the problems of overfishing persisted, and that not all measures from the previous Commission meeting had been fully enforced. Thus the protocol states that the parties agreed to extend and ensure enforcement of measures that had been decided upon at the 33 rd session, and that the problem of illegal fishing had not been resolved. The parties therefore agreed to improve the existing measures against illegal fishing and trans-shipment and to implement new measures. 161 Most of the provisions in the previous protocol were accordingly repeated, some of them in stronger terms. In addition, provisions concerning the introduction of a number of new measures were included. The new provisions relating to trans-shipment, which were treated earlier in this chapter, were aimed at the fishermen and their duty to report. The other provisions in item 12.5 of the protocols from both sessions were largely aimed at the enforcement agencies themselves. The following is a review of what these provisions consisted of, and how they have been implemented Provisions on exchange of information between the parties to the control cooperation At the 33 rd session it was decided that the parties should aim for full exchange of information on quotas, satellite tracking data and trans-shipment in response to official requests from the parties. More specifically, the parties undertook to provide the following information when such requests are made: Information at vessel level about trans-shipment at sea or landings in third countries of species in the Barents Sea and the Norwegian Sea that are jointly managed by Norway and Russia. Information at vessel level about satellite tracking in all areas of the Barents Sea and the Norwegian Sea. Information at vessel level about valid licences (authorisations) for cod and haddock fishing in the Barents Sea and the Norwegian Sea. In addition, the parties agreed to exchange monthly information on quotas for cod and haddock north of 62ºN at vessel/ shipping company level. Start-up was scheduled for 1 March The parties also aimed to make this information available on the internet in the course of 2005, and the Permanent Committee was assigned to make a list of necessary information, and to draw up procedures for data exchange. These provisions were extended and emphasised at the 34 th session, with the exception of the provision concerning licences. The emphasis consisted of the removal of the formulation at 161 Protocol of the 34 th Session of the Joint Norwegian-Russian Fisheries Commission, item 12.5, p. 9 ff. 162 All citations of provisions adopted at the 33 rd session are based on the text of the protocol of the 33 rd session of the Joint Norwegian-Russian Fisheries Commission, item All citations of provisions adopted at the 34 th session are based on the text of the protocol of the 34 th session of the Joint Norwegian-Russian Fisheries Commission, item

82 the official request of the parties. Instead, it was decided to draw up an arrangement for exchange of full and ongoing information on both satellite tracking in all areas of the Barents Sea and the Norwegian Sea and trans-shipment at sea and landings of jointly managed species in these ocean areas. The information was to be exchanged at vessel level, and it was decided that the arrangement was to be drawn up by 15 March The monthly exchange of quotas for cod and haddock was also to proceed at vessel level, rather than vessel/ shipping company level, as worded in the previous protocol, and it was decided that the parties would endeavour to keep this information continuously updated on the internet in the course of 2006 as an alternative to monthly exchange. As the text of the protocol from the 34 th session indicates, the parties were not very successful in implementing the new provisions about exchange of information in In 2006 there were also implementation problems. In the protocol from the 35th session, held at the end of October/beginning of November 2006, the parties note that they have not succeeded in putting into place the planned arrangements for ongoing exchange of information on satellite tracking, trans-shipment at sea or landings in third countries. At the same time it is established that the technical issues in connection with this exchange of information have been solved, and that the Norwegian participants are ready to commence exchange of information. However, the Russian party does not want to start exchanging trans-shipment and landing information until the necessary internal procedures have been decided upon. As regards exchange of satellite tracking data, the Russian participants find it impossible to commence before they have reached consensus on an arrangement for presenting satellite tracking data at vessel level. The parties will therefore continue their work within the framework of an ongoing trial project in order to arrive at a proposal for such a consensual arrangement. 163 According to the Directorate of Fisheries, it was already clear after a meeting of experts in March 2006 that there were no technical problems to prevent the exchange of trans-shipment and landing information. 164 After this meeting, the Norwegian party indicated that they were ready to exchange information in the first half of 2006, while the Russian party stated that such exchange required relevant provisions concerning organisational issues at federal level. 165 From time to time in 2005 and 2006, the Norwegian party sent formal inquiries about transshipment and landing information for specific vessels to the Russian authorities, but in only a few cases did they receive answers to their inquiries. No similar inquiries have been received from Russia, as there have been no cases of trans-shipment or landing in third countries of the stocks in question in 2005 or 2006 by or involving Norwegian vessels. 166 As regards quota information, the Ministry of Fisheries has implemented the provisions in both the two protocols by sending quota information to the Russian authorities every month in 2005 and The information is sent by to Rosselkhoznadzor, and applies to 163 Protocol of the 35 th Session of the Joint Norwegian-Russian Fisheries Commission, item 12.1, pp. 8 ff and item 12.5 p Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November Minutes of a meeting of technical experts for exchange of satellite tracking data in ICES areas I and II and exchange of information about trans-shipment at sea and landings in third-country ports, item 4, p Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November

83 all trawlers irrespective of length and to all conventional vessels of over 28 metres that fish for cod and haddock north of 62ºN. 168 The directorate received information from Russia about quotas at vessel level three times in the course of 2005 and twice in the first half of The Russian party explained to the directorate that Murmanrybvod and Rosselkhoznadzor have had problems in keeping updated about vessel quotas because in Russia quotas are allocated at shipping company level. Frequent quota transfers between ships belonging to one and the same shipping company have made it difficult to maintain an overview. It has been confirmed that these transfers are to be registered and approved by the enforcement authorities before quota transfer can take place, but it has been pointed out that the cumbersome registration system has made it difficult to update the information rapidly enough. With effect from 1 September, however, the Russian party has transferred monthly quota information as agreed in the protocols. 169 The provision in the protocol from the 33 rd session concerning the exchange of information about which vessels are to have licences (authorisation) to fish cod and haddock in the Barents Sea and the Norwegian Sea was dropped the following year because this information is implicit in quota information when it is exchanged at vessel level. 170 At the 33 rd session, the parties agreed that in the event of discovery of unregulated fishing, they would exchange documents that confirmed these irregularities and that could be used as evidence by the courts. At the 34 th session it was noted in this connection that there was a need to arrange a meeting between Norwegian and Russian fisheries authorities, police and prosecuting authorities in order to clarify the requirements regarding the presentation of evidence in criminal cases in the two countries. The provision on exchange of documents has largely been implemented. Both before the 33 rd session (in 2004) and subsequently (in 2005 and 2006) the Norwegian party forwarded material of this type to the Russian enforcement authorities. Since Russian vessels engage in extensive fishing in Norwegian areas of jurisdiction and land a substantial quantity of fish in Norway, the enforcement authorities have the opportunity to monitor their activities and to reveal/gather information about any irregularities. Norwegian vessels fishing and landing activities in Russian areas of jurisdiction and ports are very limited by comparison. Norwegian documentation has largely taken the form of case folders containing various documents (including copies of catch logbooks, trans-shipment and landing documents) which in combination have documented one or more illegal situations. As a rule it has been a question of unregistered trans-shipment and/or landing of fish, resulting in overfishing of quotas. In 2006, for example, 33 case folders with documentation of overfishing in 2005 were forwarded. 171 The case folders that were forwarded initially proved not to be acceptable as evidence in Russian courts. According to the Russian party, this is partly because documents that the court requires in the original were forwarded as copies, and a number of documents had not 168 Memo from the Regulatory Section, 16 October 2006, Collaboration Norway-Russian in the area of fisheries management and control in the fisheries sector. 169 Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November Letter of 2 February 2007 from the Directorate of Fisheries. 79

84 been equipped with the necessary stamps, apostilles etc. However, cases that were forwarded for 2005 were fully documented with original documents and apostilles. Nevertheless, the Directorate of Fisheries reports that to date there have been no official confirmations from Russia concerning final decisions and penalties and their enforcement. To the best of the directorate s knowledge, no cases have been brought before a Russian court. In some cases the Border Service is reported to have imposed a fine or required that the value of an illegal catch be confiscated. In all these cases, the shipping companies have brought the Border Service before an arbitration court. Rosselkhoznadzor in Murmansk has reported that one case has been sent to the agency's Moscow department with a proposal for a fine and/or confiscation. 172 The directorate s general impression is that there are many problems associated with Russian follow-up of these cases. Some key words are short periods of limitation, stringent requirements regarding evidence, and difficulties collecting fines and/or effecting seizure. In addition the Norwegian party is often uncertain whether the material that is forwarded is followed up by the Russian enforcement authorities. It often proves difficult to obtain answers to where the individual cases are in the system, and to get supplementary information from Russian agencies that could make the case folders more complete. The directorate stresses the strong need for joint Norwegian-Russian analytical work in this area Provisions relating to implementation of operational measures At the 33 rd session the parties agreed to abide by previously achieved agreements on inspection of Russian landings in Norwegian ports. This provision was also repeated in the protocol from the 34 th session in which the parties additionally stipulated that they would further develop inspection methods. As mentioned in section 5.4, there were no joint inspections of Russian landings in Norway in 2006, but agreement was reached on harmonised inspection methodology. 174 At the 34 th session, the parties agreed to establish mobile groups including inspectors from both countries who, on the basis of information about possible infringements, could implement control measures and if relevant pursue the matters further. Two joint inspection visits were arranged in the Netherlands in 2006 with a mobile group of inspectors consisting of personnel from the Directorate of Fisheries and Rosselkhoznadzor. However, the landing facility refused to allow the Norwegian inspectors access to vessels and warehouses. Because of funding constraints on the Russian side, further joint inspection trips could not be arranged in At the 34 th session, the parties also agreed to collaborate on inspections of fishing vessels in the Barents Sea Loophole and the adjacent area in the Barents Sea (the Grey Zone). This was to be carried out by the parties according to agreement, giving inspectors from one party the right to spend time on the other party s vessels in order to carry out inspections of vessels 172 Letter of 2 February 2007 from the Directorate of Fisheries. 173 Minutes of a meeting between the working groups from the Norwegian and Russian SAIs and the Directorate of Fisheries in Bergen, 5 September Records of a meeting of the Permanent Committee on Control and Enforcement in the Fisheries Sector at Sortland, 9 13 October 2006, Appendix 3: Inspection methodology. 80

85 with their own flags that were engaged in fishing in the Barents Sea Loophole and the Grey Zone. At the Permanent Committee meeting in February 2006, it was agreed that such inspections should be carried out by 1 June the same year pursuant to a special procedure that was agreed between the Coastguard and Rosselkhoznadzor. 175 In 2006, collaborative inspections of this nature were carried out in the Grey Zone in May- June. The Russian participants were two inspectors from the Border Service, since this is the agency that is responsible for Russian fisheries control in the Grey Zone. The inspectors accompanied a Norwegian Coastguard vessel on a tour of duty in the zone, and some Russian vessels were inspected. Norwegian inspectors participated as observers. A similar tour was planned for September-October but was cancelled because of bad weather. A planned tour in the Loophole later in the autumn, in which Rosselkhoznadzor was to take part from Russia with the hired vessel Sura, was cancelled because there was no fishery activity in the area Measures considered for implementation by one or both parties The Norwegian party reported at the 33 rd session that licensing practice would become stricter, so that the issue of a licence could be refused if a vessel had withheld or suppressed information from the inspectors in connection with an inspection. The Russian side stated that they would use similar measures. This provision was not retained in the protocol from the 34 th session. The Directorate of Fisheries reports that the possibility of using this measure was discussed further by the Permanent Committee, but the parties did not arrive at any decision. The directorate maintains further that Norway does not at present have a legal basis for penalising Russian vessels that over-fish their quotas, since it is Russian fisheries rules that are breached in such cases. What the Norwegian side can do, according to the directorate, is to report such infringements to the Russian authorities and assist them with data that can contribute to penalisation of the offenders. 177 At the 34 th session, the parties determined that they would consider forbidding transit through their areas of jurisdiction of cod and haddock from the Barents Sea and the Norwegian Sea on vessels that did not have the right to sail under the flags of NEAFC member countries or cooperative countries. According to the Directorate of Fisheries, this is no longer an option for Norway as the Ministry of Foreign Affairs considers that the use of this measure is problematic in terms of international law. 178 The Norwegian participants also reported at the 34 th session that they would consider establishing a duty for vessels in transit to report when entering areas subject to Norwegian fisheries jurisdiction when they transport cod and haddock from the Barents Sea. This measure, too, is not an option any longer as the Ministry of Foreign Affairs considers that it is difficult also in this case to find a basis in international law for implementing the measure. 179 The measures have been under deliberation, but no conclusion regarding implementation has been reached as yet. 175 Records of a Permanent Committee meeting in Murmansk, October 2006, item 10, page Telephone interview with Coastguard Squadron North, 25 January Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November

86 5.6.4 Other provisions concerning control At the 33 rd session, the Permanent Committee was assigned the task of monitoring developments in FAO and NEAFC with respect to international rules for port state control with a view to making use of the experience of others in this area of the Commission's work. At the 34 th session it was also decided that the parties should cooperate in NEAFC with a view to establishing a consensual regime for port state control of fishery resources in the area covered by the NEAFC convention. At NEAFC s 25th annual meeting on November 2006, the contracting countries agreed that a port state control regime should be introduced in May According to the Directorate of Fisheries, Norway and the EU countries in particular have been prime movers within NEAFC to put this arrangement in place. 181 At the 33 rd session, the Permanent Committee was commissioned to continue the process of establishing contact with third countries for exchange of relevant information. At the 34 th session, a more concrete objective was formulated without reference to the committee. The parties agreed to continue the work of establishing agreements on control and enforcement with relevant third countries in order to obtain more complete information about landings in these countries. (Our translation from Norwegian). In 2006 Norway entered into new agreements on control with Portugal, Lithuania and Morocco, and revised existing agreements with Iceland, the Faroe Islands and Sweden. 182 According to the Directorate of Fisheries, the Norwegian party has previously assisted the Russian authorities in making agreements with third countries. In 2006, however, the Norwegian party took the initiative for the parties to work on this individually. The background to this is that the directorate maintains that it has observed that Russia makes little use of these agreements. The directorate refers in this connection to statements from the Russian side during meetings of the working group on control cooperation at the Joint Commission meeting in 2006, where it emerged that the Russian party does not trust landing data from third countries as a basis for quota control. 183 At the 34 th session, the parties noted that a meeting was needed in the immediate future between the parties fisheries authorities, police and prosecuting authorities with respect to the parties requirements regarding presentation of evidence in criminal cases. According to the Directorate of Fisheries, Norway allocated funds for bringing about such a meeting. However, the Russian party has not managed to designate relevant personnel from the police and prosecution authorities. At the 35 th session, the parties agreed to stress to the police and prosecution authorities and the tax and customs authorities how important it is that all relevant agencies attend meetings of the sub-committee Press release from annual meeting: Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November Minutes of a meeting between the Directorate of Fisheries and the OAG, 9 November Protocol of the 35 th Session of the Joint Norwegian-Russian Fisheries Commission, item 12.5, page

87 5.7 Assessments: implementation of decisions taken by the Fisheries Commission The investigation shows that in the Norwegian administration there are clear procedures for how international commitments, such as decisions taken by the Joint Norwegian-Russian Fisheries Commission, are to be implemented in Norwegian legislation. The new rules for trans-shipment of fish at sea that were adopted at the Joint Commission s 33 rd session in autumn 2004 were laid down in the form of regulations in February May The follow-up and enforcement of the new rules by the enforcement authorities varied somewhat in the period immediately after the rules had come into force. The investigation shows that the enforcement is now functioning according to expectations. The MoU on Control Cooperation, which was signed by the Norwegian and Russian fisheries enforcement authorities in 2000, is in principle a good basis for cooperation. It is important that this document is as up to date as possible at all times so that it covers the instruments that are most effective with respect to meeting the challenges in the area of control. The implementation of a number of new obligations on control cooperation, which were adopted at the Joint Commission s 33 rd session (item 12.5 of the protocol) and formulated more strongly at the 34 th session, has been partly successful. With reservations for the fact that interviews have not been carried out with Russian enforcement agencies, it may be asserted that the Norwegian enforcement authorities have in general followed up the new commitments. In some cases, a Norwegian party has not followed up because the Russian party has made it clear that for the present they will not be able to follow up on their side. A central problem in the control cooperation appears to be that it has been difficult to bring about real analytical and operational cooperation between Norwegian and Russian control agencies, particularly with respect to the problem of overfishing. It may be pointed out here that extensive documentation of overfishing cases has been sent over a number of years from Norwegian to Russian control agencies without anything appearing to come of it, for example in the form of legally enforceable rulings against implicated shipping companies. It must accordingly be regarded as very important that the parties follow up the resolution from the Joint Commission s 35 th session to the effect that analytical meetings shall be held at least once quarterly in 2007 and information compared at vessel level to permit the detection of any infringements. 83

88 6 Topic 3: Resource control in Norway 6.1 Audit criteria International and bilateral agreements, protocols from the annual meetings of the Joint Norwegian-Russian Fisheries Commission, and the decisions and intentions of the Storting all state that resource control is a fundamental and central instrument in ensuring that the total catch of fish is in conformity with the objective of sustainable management of resources. International agreements The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is the overarching legal framework for all national, regional and international measures in the marine sector. The Convention was ratified by Norway in The Convention prescribes that a coastal state must promote the goal of optimal utilisation of living resources in its 200-mile zone through the conservation and management measures deemed necessary, while also ensuring that these resources are not endangered by over-exploitation. 186 In addition, the Convention decrees that coastal states have the right to implement the measures necessary to ensure that acts and regulations related to the exploitation of marine resources are complied with: The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention. 187 The follow-up to the Convention the UN Fish Stocks Agreement 188 contains a number of provisions on control. The agreement was ratified by Norway in The provisions on enforcement and control under the jurisdiction of the regional management regime are of central importance. The agreement confirms that the flag state has the main responsibility for ensuring that fishing operations comply with the regulations, but also sets out provisions allowing states other than the flag state to put into effect measures to enforce and monitor international regulatory provisions. Pursuant to the agreement, the parties therefore have a general right to inspect the fishing vessels of other contracting parties on the high seas. 190 The agreement stipulates that the flag state must implement the measures considered necessary to ensure that vessels under its flag comply with the conservation and management measures that are in force, and that vessels are not involved in activities that undermine the effectiveness of such measures. For example, the flag state must control vessels through the use of licensing schemes. In addition, the flag state must establish a national register of 185 Proposition no. 37 to the Storting ( ); Recommendation no. 227 to the Storting ( ). 186 UNCLOS, 1982, Part V, Articles 61 and UNCLOS, 1982, Part V, Article Agreement for the implementation of the provisions of UNCLOS of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks, 4 August Cf. Proposition no. 43 to the Storting ( ); Recommendation no. 228 to the Storting ( ). 190 Proposition no. 43 to the Storting ( ). 84

89 fishing vessels authorised to fish on the high seas and must have a system for marking vessels and fishing gear for identification purposes. The agreement also requires the flag state to have a system for reporting the fishing vessel s position, the catch and other relevant data about fishing operations etc., as well as a system for verifying the catch through inspection, landing information and surveillance. In this connection the flag state must also control fisheries through the use of satellite monitoring and by regulating fishing operations and trans-shipment. In the case of agreed sub-regional, regional or global systems for monitoring, control and surveillance, the flag states must ensure that the measures implemented are consistent with the system. 191 Bilateral agreements In 1975 and 1976 Norway and the Soviet Union entered into bilateral agreements on cooperation within the fishing industry and on mutual fisheries relations. The Storting approved the ratification of these agreements in 1975 and 1976, respectively. 192 In the 1975 agreement, the contracting parties acknowledge responsibility and commitment in respect of taking effective measures aimed at protecting living resources in the North East Atlantic. The agreement also embodies provisions whereby the parties must exchange information, including data on catch statistics, fisheries research results and experience related to the development of fisheries and methods for helping to increase fish stocks. 193 The point of departure of the 1976 agreement is that the contracting parties ensure that their citizens and fishing vessels comply with the provisions of the agreement as well as with other fisheries regulations. 194 In accordance with the agreement and in line with international law, the parties can adopt the measures within their area necessary to ensure that fishing vessels belonging to the other contracting party observe the provisions of the agreement 195 The agreement also states that the parties have a responsibility to ensure that fishing vessels, as defined in Article 1 of the agreement, act in accordance with conservation measures, acts and regulations as well as with other rules and requirements on fishing operations decided by the contracting party. 196 Moreover, the 1976 agreement establishes that all vessels must have a licence to fish in the economic zone of the other party. 197 Protocol of meetings of the Joint Norwegian-Russian Fisheries Commission The 1975 agreement on cooperation in the fishing industry between Norway and the Soviet Union contains a provision that a joint commission shall be appointed to meet at least once a year in order to deal with questions related to the implementation of the agreement. The 191 UN Fish Stocks Agreement, Part V, Article 18, Duties of the Flag State. 192 Cf. Proposition no. 86 to the Storting ( ); Recommendation no. 191 to the Storting ( ); Proposition no. 74 to the Storting ( ); Recommendation no. 138 to the Storting ( ). 193 The agreement between the Government of the Union of Soviet Socialist Republics and the Government of the Kingdom of Norway on cooperation in the fishing industry, 1975, Introduction and Article I. 194 The agreement between the Government of the Union of Soviet Socialist Republics and the Government of the Kingdom of Norway on mutual relations in fisheries, 1976, Article 5, Section The agreement between the Government of the Union of Soviet Socialist Republics and the Government of the Kingdom of Norway on mutual relations in fisheries, 1976, Article 5, Section The agreement between the Government of the Union of Soviet Socialist Republics and the Government of the Kingdom of Norway on mutual relations in fisheries, 1976, Article 4, Section The agreement between the Government of the Union of Soviet Socialist Republics and the Government of the Kingdom of Norway on mutual relations in fisheries, 1976, Article 3. 85

90 Storting is to be informed about the protocols of the annual meetings in the yearly reports to the Storting. 198 Meeting protocols from recent years reveal that the parties underscore the necessity for strict control of fishing in the Barents Sea and the Norwegian Sea. 199 Priority is given to the goal of using all possible means of detecting and preventing the considerable amount of unregistered removal of cod from the Barents Sea. 200 Control measures agreed by the parties are presented in the annual meeting protocols. As mentioned earlier, cf. section 3.2, reporting duties for fishing vessels and transport vessels involved in trans-shipment on the high seas were introduced from 2005 as well as obligatory satellite tracking for transport vessels and a prohibition on trans-shipment of fish to vessels that do not have the right to fly a flag of the North East Atlantic Fisheries Commission (NEAFC). 201 The annual meeting protocols also deal with a number of technical regulatory measures. In the protocols of the 33 rd and 34 th sessions the parties emphasise the necessity of checking compliance with the agreed measures. It is a prerequisite that the authorities also verify that the measures are complied with in practice. Moreover, it is assumed that the joint Norwegian-Russian scheme for the closing and opening of fishing grounds for demersal fish and shrimp is put into operation. 202 The parties discussed fishing in the Barents Sea and the Norwegian Sea by third countries and agreed to continue active control of these fishing operations so that fishing can be discontinued when the quotas allocated have been reached. 203 National goals for resource control The primary objective for national resource management is to facilitate a harvesting of fish that ensures an enduring high yield from the resources while safeguarding the marine ecosystem. Resource control is a key national instrument and a fundamental prerequisite for achieving the goal of profitable and sustainable resource management. Propositions no. 1 to the Storting ( ) and ( ) Ministry of Fisheries make it clear that responsible fisheries management requires effective control. Proposition no. 1 to the Storting ( ) and Proposition no. 1 to the Storting ( ) state that effective resource control is a necessary prerequisite for preventing and detecting crime related to the exploitation of resources. During deliberations on Report no. 19 to the Storting ( ) Om marin næringsutvikling Den blå åker [On the development of the marine industry] the Standing Committee on Business and Industry points out that in order to ensure sustainable fisheries and to prevent economic and environmental crime it is necessary to strengthen resource control. The Storting passed a resolution, cf. Recommendation no.192 to the Storting ( ), declaring that the Storting is of the opinion that it is necessary to strengthen resource 198 Cf. Report no. 39 to the Storting ( ) Om dei fiskeriavtaleane Norge har inngått med andre land for 2005 [The fisheries agreements Norway has made with other countries for 2005] and fishing activities under the agreements in 2002 and 2003; Report no. 45 to the Storting ( ); Report no. 43 to the Storting ( ). 199 Protocols of the 31 st 33 rd sessions of the Joint Norwegian-Russian Fisheries Commission. 200 Protocols of the 33 rd and 34 th sessions. 201 Protocol of the 33 rd session, section Protocols of the 30 th 33 rd sessions, items 12.8 and 12.9 of the protocol of the 34 th session. 203 Protocol of the 33 rd session, item Cf. protocols of the 30 th 32 nd sessions, item

91 control in fisheries, and requesting that the Government put forward appropriate proposals to achieve this. During deliberations on Report no. 39 to the Storting ( ) on the fisheries agreements Norway had entered into with other countries for 2004, and fishing activities under the 2002 and 2003 agreements, cf. Recommendation no. 72 to the Storting ( ), the Standing Committee on Business and Industry refers to the fact that illegal and unregulated fishing continues to be a considerable problem and requests that resource control be strengthened in the coming years. In the annual budget propositions for the Ministry of Fisheries and Coastal Affairs 204 it is stated that the Directorate of Fisheries must help to ensure sustainable management of marine resources. The directorate must ensure that resource exploitation is in conformity with the applicable national and international regulatory provisions. According to Proposition no. 1 to the Storting ( ) Ministry of Fisheries and Coastal Affairs, the Directorate of Fisheries must improve the effectiveness of resource control and must coordinate control activities with the sales organisations and the Coastguard. Inspections on land On land the Directorate of Fisheries and the sales organisations are responsible for the executive part of the control work. The control responsibility of the Directorate of Fisheries and the sales organisations is set out in the Act relating to sea-water fisheries, etc. (the Sea- Water Fisheries Act). 205 The relevant acts are primarily acts of empowerment whose purpose is to give the fisheries authorities the necessary tools for conducting appropriate and sustainable management of ocean resources. The specific rules on the implementation of control activities are mainly specified in the directorate s internal guidelines. Inspections at sea The Coastguard s inspection of fishing vessels has a legal basis in Section 9 of the Act of 1997 relating to the Coastguard which states that the Coastguard may conduct surveillance of fisheries and resource control pursuant to the following Acts: the Act relating to prohibitions against fishing etc. by foreign nationals in Norway s territorial waters, the Act relating to the Norwegian Economic Zone, the Sea-Water Fisheries Act, and the Act relating to the right to participate in fishing operations. Chapter 5 of the Act relating to the Coastguard deals with the specific control and enforcement measures that the Coastguard has at its disposal. The Coastguard has limited police authority (Section 21) and can stop and inspect vessels and fixed gear (Section 29). In the description of the Coastguard s main objectives and priorities, Proposition no. 1 to the Storting ( ) states that appropriate resource control shall continue to be a central policy goal. Therefore priority is given to maintaining a presence at sea and to implementing control activities. 206 Monitoring and control by the Customs and Excise authorities Violations of regulations in the fisheries sector are often accompanied by contraventions of Customs and Excise regulations. Proposition no. 1 to the Storting ( ) Ministry of Fisheries, Appendix 1, states that cooperation with the Customs and Excise authorities is 204 Cf. Proposition no. 1 to the Storting ( ) ( ) Ministry of Fisheries and Coastal Affairs and other documents (Name changed from Ministry of Fisheries as of 1 October 2004). 205 Sea-Water Fisheries Act, Sections 45 and 45a. 206 Cf. Proposition no. 1 to the Storting ( ) Ministry of Defence; Budget Recommendation no. 7 to the Storting ( ) etc. 87

92 important in the monitoring of fisheries enterprises. The prime objectives of the Customs and Excise authorities are to prevent illegal exports of goods and to ensure correct assessment 207 as well as correct declaration. 208 In September 2000, pursuant to the provisions of the EEA Agreement, the EU Commission requested Norwegian Customs and Excise authorities to check certificates of origin issued by Norwegian exporters of whitefish (cod, haddock and saithe). 209 This verification has now been completed. However, the Government will follow up the action plan on economic crime by prioritising control of the export area generally, partly in view of Norway s standing as an export nation. The Customs and Excise authorities will monitor the fisheries industry with the aim of detecting errors in certificates of origin and other types of incorrect declarations in respect of the export of fish. 210 In the letters of allocation for 2004 and 2005 from the Ministry of Finance to the Customs and Excise Directorate it is stated that the number of document checks and physical inspections must be on a satisfactory level. The letter of allocation for 2003 requires that the number of document checks and physical inspections be increased. In border control areas the number of inspected objects must be maintained, cf. letters of allocation for Control by the Tax Administration Violations of fisheries regulations are often accompanied by contraventions of tax regulations. There are no explicit general requirements stating that the tax administration must monitor fisheries enterprises. However, one of the main objectives of the tax administration is to ensure the correct assessment of taxes and government charges imposed on business enterprises, and enterprises in the fisheries sector are included among these. Combating the black economy and economic crime is also an area of central importance. 211 In this connection the monitoring of selected groups of business enterprises by the tax administration must be systematised. 212 Letters of allocation for 2003, 2004 and 2005 state that monitoring activities in the tax administration must be strengthened and on-site control must be increased. Selection of businesses for control and auditing must be based on an assessment of risk and materiality. The letter of allocation for 2004 indicates that the tax administration ought to give priority to cooperation with other enforcement authorities. 6.2 Overview of various enforcement authorities and the allocation of areas of responsibility Resource control is a fundamental and central policy instrument for ensuring that the harvesting of fish is in conformity with the goal of sustainable resource management. Resource control must ensure both that the industry complies with the applicable quota provisions and other regulations on fisheries, and that violations are detected. Resource control must also supply data about the actual removal of all fish in areas under Norwegian fisheries jurisdiction. This is accomplished by means of various registration schemes etc. 207 Cf.e.g. Proposition no. 1 to the Storting ( ) and ( ) Ministry of Finance. 208 Cf. Proposition no. 1 to the Storting ( ) Ministry of Finance. 209 Cf. Proposition no. 1 to the Storting ( ) Ministry of Finance; Proposition no. 1 to the Storting ( ) Skatte-, avgifts- og tollvedtak (Decisions relating to taxes, government charges and excise duties). 210 Cf. Proposition no. 1 to the Storting ( ) Skatte-, avgifts- og tollvedtak (Decisions relating to taxes, government charges and excise duties); Budget Recommendation no. 1 to the Storting ( ). 211 Cf. Proposition no. 1 to the Storting ( ) and ( ) Ministry of Finance. 212 Cf. Letter of allocation for

93 Resource control is broadly based and is directed at the entire chain, from the catching, landing and selling of fish to its export to other countries, where applicable. The Ministry of Fisheries and Coastal Affairs is responsible for ensuring that both Norwegian and foreign fishing operations in waters under Norwegian jurisdiction are carried out pursuant to Norwegian acts and regulations. Internationally, fishing operations take place in ocean waters that do not come under any state s jurisdiction. 213 Vessels are subject to the flag state s provisions, and these areas are otherwise regulated by UNCLOS and the UN Fish Stocks Agreement, as well as by NEAFC. 214 Norway does not permit Norwegian citizens to fish in areas that are not regulated by the Regional Fisheries Management Organisation (RFMO) without special permission. 215 The Coastguard, the Directorate of Fisheries and the sales organisations are responsible for carrying out ongoing supervision. The sales organisations have exclusive rights to all firsthand sales of fish, and also have responsibility for registering all fish traded in Norway as well as all fish sold by Norwegian vessels abroad. This registration work forms the basis of the ongoing monitoring of quotas. The Coastguard has the main responsibility for resource control at sea. The Directorate of Fisheries employs various control measures both on land and at sea. Contraventions of fisheries regulations may be accompanied by contraventions of regulations that prescribe rules for customs and excise, government charges, accounting and taxation. Therefore the Norwegian Customs and Excise authorities and the tax administration are key cooperative partners in resource control. The following sub-section first provides a description of the ongoing quota control, and then presents the work of the various authorities in this field. 6.3 Monitoring of quota uptake In Norway a system has been established whereby all fish landed in Norwegian ports and all fish landed by Norwegian vessels in other countries must be registered. This statutory registration scheme forms the basis of the ongoing quota control. The monitoring of quota uptake implies that all fish landed and sold at first hand are registered continually and deducted from the individual vessel s quota. 216 Six sales organisations have responsibility for the registration of landed and sold fish and have first-line responsibility for the ongoing quota control of the individual quota holder. On the basis of the registered information, the Directorate of Fisheries must ensure that the total uptake of fish does not exceed the overall quotas. The directorate must also update the quota registers and other registers on which the sales organisations base their quota control work. The ongoing quota control is based on landing and sales documents (landing declarations and sales notes) that must be signed by both the fisherman or the person who delivers the catch and the fish landing facility/buyer, and then be sent to the sales organisations. Thus a correct quota settlement requires that the supplier and the receiver fill in correct information on these forms. It is therefore essential that the ongoing monitoring of quotas is backed by random 213 Cf. Chapter 1 for a description of the various zones and ocean waters. 214 A description of NEAFC regulations is given in the chapter on international agreements. 215 Cf. regulations of 2 March 2007, Sections 1 and 2, relating to the concession scheme for fishing operations outside Norwegian fisheries jurisdiction. 216 A detailed description of the Norwegian quota allocation system is given in Chapter 8. 89

94 checks and risk-based landing inspections, during which inspectors from the Directorate of Fisheries are present and can monitor a number of landings. A more detailed description of the system for ongoing monitoring of quotas and the extent to which quotas have been exceeded is presented below Basis in Norwegian legislation for the ongoing monitoring of quotas Section 2 of the Act relating to the marketing of raw fish prescribes that first-hand sales of fish must be carried out by or with the approval of a sales organisation. The sales organisations are owned by fishermen and must be approved by the Ministry of Fisheries and Coastal Affairs. The inspection responsibility of the sales organisations is laid down in the Sea-Water Fisheries Act 217 and has applied since The inspection responsibility is limited to the natural sphere of activities of the sales organisations. In this respect the Act specifies inspection of the uptake of fish and the landed catch. This means that the sales organisations must check that the vessel s uptake of fish corresponds to the allocated quotas. Pursuant to the Act, the Ministry has issued instructions on the inspection duties of the sales organisations and the scope of this inspection work. 218 Section 7 of the Sea-Water Fisheries Act is of central importance in the work on monitoring quotas. If vessels exceed their quotas, the excess catch or its value accrues to the sales organisation responsible for first-hand sales of the catch. 219 The sales organisations make a decision regarding confiscation. If the excess catch was unintentional, the vessel will receive compensation for the costs of landing the catch. Confiscation of excess catch or the value thereof is not considered to be a penalty. In addition, the Act contains a provision prescribing that a fishing vessel that has caught dead or dying fish, or that has been prohibited from discarding catches or fish waste, can voluntarily or pursuant to an order land this catch, cf. Section 11. In practice, this provision will apply to contraventions of the rules on by-catches. The by-catch is catch that is not being actively fished but that is included in the total catch for natural reasons. This means that if by-catch that exceeds the permitted amount is landed, the by-catch or its value may be confiscated pursuant to Section 11 of the Act. In accordance with this provision, the value of the confiscated catch will accrue to the sales organisation responsible for first-hand sales. However, the regional offices of the Directorate of Fisheries have the formal responsibility for detecting any violations of this provision in their work on resource control. Decisions on administrative confiscation of the catch are also made by the regional offices. Intentional overruns of quotas will normally only be detected through physical inspections of vessels that are fishing or landing fish, or during follow-up inspections at shore facilities for receiving and/or processing fish. The reason for this is that the overrun of quota in such cases is caused by the failure of the fisherman to register part of the catch on the landing declaration or on the sales note (cf. Chapter 4). 217 Cf. section 45 of the Sea-Water Fisheries Act. 218 Cf. instructions on sales organisations inspection obligations, last amended 12 May Cf. section 7 of the Sea-Water Fisheries Act. 90

95 6.3.2 Sales organisations ongoing monitoring of quotas Catch registration system The catch registration system, which is an important part of the control of quotas, is based on two different forms. The main aim is that the catch must be registered on landing regardless of whether it is sold at the same time. When landing fish that is sold at the same time, the receiver must complete a sales note immediately after landing. When landing fish that is not to be sold immediately, the receiver must complete a landing declaration. 220 When this fish is sold, the buyer must also complete a sales note. This requirement also applies in the transshipment of catches between vessels. The landing declaration and the sales note must contain information about the fishing, for example information clearly identifying the vessel and the fisherman who delivered the fish. In addition, information about the catch area, species, quantity and price must be provided, as well as information about the party receiving, storing or buying the fish that has been delivered. 221 Both forms must be sent to the sales organisation responsible for first-hand sales immediately after completion. It is the duty of both supplier and receiver to sign the documents before the supplier leaves the facilities. To be valid, both forms must be signed by the supplier and the receiver. Box 6 Background for the present registration system The present catch registration system was introduced in 2004 (the regulations were amended in 2003 but only fully implemented from 2004). This new system introduced a number of basic changes in the quota control system. The new system was formally introduced by the regulations relating to the reporting obligation when landing and selling fish (Regulations relating to landing declarations and sales notes, put into effect on 22 January 2003). These regulations replaced the sales note regulations of Previously there was no standardised sales note. The individual sales organisation designed a sales note based on the statutes of the organisation in accordance with the needs of the organisation. This meant that prior to 2004 a number of different sales notes were in use and terms were not standardised. By means of the new regulations, it was determined that the Directorate of Fisheries should approve the design of the sales notes. The sales note was thus standardised and all terms precisely defined (the individual sales organisation has the right to require that other relevant information be entered on the sales note). Another important change resulting from the regulations relating to forms was the introduction of the landing declaration. Earlier, ongoing quota control was based on the sales note alone ( quayside declaration was also a term used to designate a sales note in the regulations on sales notes/quayside declarations, 1990). However, in the 1990s there were several incidents where vessels landed fish that were not sold at the time of landing. This meant that large quantities of fish were not being registered when landed. Thus ongoing quota control did not function as intended because the fish that was being stored temporarily pending sale was not deducted from the quota. Consequently, the landing declaration was introduced as a legal document in 2004 by means of the regulations relating to landing declarations and sales notes. The purpose of issuing two administrative forms is thus that the fish landed can be set off against the quota immediately on landing. If the sale of fish took place later than the landing, there was a delay in the quota set-off because a sales note was only to be submitted when the fish was sold. This delay could, for example, affect the quota settlement for the individual vessel, the confiscation of catch and the discontinuation of fishing operations for quota groups. 220 Cf. regulations on reporting obligation for landing and sale of fish, Cf. section 9a of the Sea-Water Fisheries Act. 91

96 Control of landing declarations and sales notes by the sales organisations Of altogether six sales organisations in Norway, the Norwegian Fishermen s Sales Organisation and the Sunnmøre and Romsdal Fishermen s Sales Organisation account for most of the first-hand sales of cod fished north of 62ºN. 222 According to representatives of these two sales organisations, almost all landing declarations are submitted to them electronically. 223 A large percentage of altogether sales notes received by these two sales organisations yearly are also submitted electronically. 224 The sales notes submitted on paper are entered electronically by the individual fishermen s sales organisation. Table 8 shows the total number of sales notes/landing declarations that each of the aforementioned sales organisations received in Table 8 Total number of sales notes/landing declarations received by the Norwegian Fishermen s Sales Organisation and Sunnmøre and Romsdal Fishermen s Sales Organisation in Year Norwegian Fishermen s Sales Organisation Sunnmøre and Romsdal Fishermen s Sales Organisation Source: statistics from the Norwegian Fishermen s Sales Organisation and Sunnmøre and Romsdal Fishermen s Sales Organisation Table 8 shows that the Norwegian Fishermen s Sales Organisation received just under forms annually from Fewer were received in Sunnmøre and Romsdal Fishermen s Sales Organisation received on average slightly less than forms annually in the same period. The sales organisations exchange landing information on a weekly basis via the Directorate of Fisheries since each sales organisation is responsible for quota control of vessels registered in its district. Figures from the Norwegian Fishermen s Sales Organisation show that approximately 80 per cent of a total of forms received in were for various quantities of cod. Figures from Sunnmøre and Romsdal Fishermen s Sales Organisation show that approximately of the forms are received every year cover cod caught north of the 62 nd parallel. In order to ensure the effectiveness of ongoing quota control, it is important that all forms submitted are accurately completed and include all information requested. The sales notes and landing declarations that are received electronically by the Norwegian Fishermen s Sales Organisation and Sunnmøre and Romsdal Fishermen s Sales Organisation will be checked automatically to verify that all the relevant fields on the electronic form are completed. One of the sales organisations uses approximately 150 pre-defined parameters in the verification, including logical controls for example that the fish species tallies with the fishing gear 222 In practice almost all cod has been caught north of 62 N in recent years due to low stocks of cod in the North Sea. 223 The landing declaration for live-caught fish is not necessarily submitted electronically. The value of the livecaught catch amounts to several million Norwegian kroner per year. 224 Some buyers, for example seasonal buyers of small amounts of fish, do not submit sales notes electronically. The goal is to encourage as many buyers as possible to use electronic sales notes. One sales organisation offers NOK in financial support to buyers who wish to invest in the necessary equipment for electronic reporting. 225 This is mainly due to changes in the registration system in Prior to 2004, landings could be totalled on a weekly basis. Consequently there were in reality more landings in 2003 than in either 2004 or

97 used. Other types of logical controls are linked to price and quantity. In addition, the automatic control is based on the Directorate of Fisheries vessel register and information on rights. In the vessel register each vessel is given a unique number. The information on the sales note and landing declaration must tally with the information in the vessel register. This also applies to information on the rights allocated to the vessel. In the event of deficient or illogical information the form will be stopped and returned to the issuer. Box 7 Current registers The vessel register: Pursuant to the Act relating to the right to participate in fishing and hunting operations, vessels that are to be used for commercial fishing or hunting must be marked. The register contains the names of the vessels, the unique registration markings of the vessels, the owner of each vessel etc. The vessel and participant register (=rights register): All participants/access rights and concessions, if any, are registered here. This may include the type of vessel and the gear that can be used. One way of regulating fishing operations is by means of access rights. This register also contains information about the size of quotas at individual vessel level. All information from sales notes is entered in the catch register in order to keep track of the actual quantity of fish caught. Each sales organisation issues an invoice based on each form received, and sends it to the buyer of the fish. When the settlement of the invoice is registered, the sales organisation transfers this settlement to the fisherman. Therefore, in addition to being a document used for the purpose of verification, the sales note is also a settlement document that represents the value of the catch transaction between two parties. The fisherman thus has a financial incentive to complete the form. All data registered on the completed landing declarations and sales notes are stored in the database of the individual fishermen s sales organisation. Each night, these sales organisations receive updated information on quotas and rights for every vessel from the Directorate of Fisheries. It is at this time that the individual vessel s quota must be settled when fish are landed. The Norwegian Fishermen s Sales Organisation and the Sunnmøre and Romsdal Fishermen s Sales Organisation have different approaches to how the quantity of fish is checked against the allocated quotas. In one of the sales organisations, the vessel that has over-fished will be automatically flagged by the data system. The other sales organisation explained when interviewed that monitoring of quotas is carried out by running a special computer program. In 2006 three such quota controls were executed electronically but the frequency will gradually increase and the sales organisation anticipates that in 2007 it will be possible to begin daily controls. If the catch delivered is not sold immediately on landing, the settlement of quota is based on the landing declaration. However, representatives of the Norwegian Fishermen s Sales Organisation and the Sunnmøre and Romsdal Fishermen s Sales Organisation stated when interviewed that they do not use the landing declaration in the ongoing monitoring of quotas. One of the sales organisations expects that landing declarations will be used from 2007 in relevant cases. The other organisation said that fishermen who wish to defer the sale of the fish delivered must submit a request to do so. 226 In the view of the organisation this gives a 226 In the event, a special case will be opened. When the stored fish is sold and the sales note is completed, it will be added to the case. The information on the landing declaration and the sales note must be identical. 93

98 good overview of the fish sold on landing even though landing declarations are not used directly in the ongoing monitoring of quotas. The Directorate of Fisheries stated when interviewed that the sales organisations should base quota control on the landing regulations. Considerable effort was invested in preparing the new regulations (landing regulations, January 2003) in order to ensure that quota control could be more efficiently geared to the trend for an increasing percentage of the catch to be sold at a later stage than the time of landing. In the opinion of the directorate it is unsatisfactory that landing declarations are not yet being fully utilised in the sales organisations monitoring of quotas. However, at present one of the sales organisations has not established an ongoing monitoring of quotas, and the directorate therefore finds the sales organisation s use of landing declarations in quota control acceptable. The Norwegian Fishermen s Sales Organisation and Sunnmøre and Romsdal Fishermen s Sales Organisation stated when interviewed that continuous quota settlement for each vessel does not pose any particular problems today. Earlier, continuous settlement was sometimes deficient, for example because information from the Directorate of Fisheries on quotas and rights was not properly updated or was not available. However, the directorate has taken steps to deal with this problem and most of the information required by the sales organisation for quota control is timely and correct today. 227 Representatives for both sales organisations stated that ongoing monitoring of quotas functions extremely well today compared with only a few years ago. Representatives of both sales organisations state that data on trawler quotas is not as well updated on a daily basis as data on conventional vessels. In addition, there are small, individual quotas 228 that at present are not fully updated by the directorate at all times. According to the directorate, quota information for trawlers may be delayed but as a rule this is because the owners of the vessels do not submit the required information to the directorate. Some shipping companies have several vessels and transfer quotas between the vessels. As a result the directorate is not always able to provide completely updated information on quotas The Directorate of Fisheries use of landing declarations and sales notes The Directorate of Fisheries receives all landing declarations and sales notes submitted by all the sales organisations. These form the basis of the directorate s follow-up of all quotas that are distributed between trawlers and conventional vessels. In the case of conventional vessels, the total quota is further distributed among various groups. 229 The directorate uses the landing declarations and sales notes to monitor compliance with group quotas and national quotas. If the total quota is fished in one of the quota groups, the fishing operations of all vessels in this quota group will be discontinued. Although the sales organisations do not use the landing declaration in connection with quota control, the directorate will nevertheless have access to them, so that there will be no time lag in the follow-up of the total quota Results of the ongoing quota control of cod Table 9 shows the extent to which fishing vessels have over-fished the quota of cod allocated pursuant to Section 7 of the Sea-Water Fisheries Act, according to information provided by 227 This applies to information in the vessel register, the register of fishing rights and the quota register. 228 School quotas and research quotas. 229 Cf. Chapter 8, Topic 5: Distribution and filling of quotas. 94

99 the Norwegian Fishermen s Sales Organisation or the Sunnmøre and Romsdal Fishermen s Sales Organisation. Table 9 Cod confiscated by the Norwegian Fishermen s Sales Organisation and the Sunnmøre and Romsdal Fishermen s Sales Organisation, pursuant to Section 7 of the Sea-Water Fisheries Act, by weight and value, together with the total number of confiscation orders Norwegian Fishermen s Sales Organisation Sunnmøre and Romsdal Fishermen s Sales Organisation Confiscated cod, total kilos Value of confiscated cod, total NOK, Number of confiscation orders, Section 7, Table 9 shows that the Norwegian Fishermen s Sales Organisation confiscated roughly 350 tonnes cod valued at approximately NOK 6.1 million in In comparison the sales organisation sold about tonnes of cod valued at over NOK 8.6 billion. The table also shows that Sunnmøre and Romsdal Fishermen s Sales Organisation confiscated a total of kg cod valued at just over NOK In comparison over tonnes of cod with a first-hand value of NOK 1.5 billion were sold in this period. The total quantity of fish confiscated was 0.08 percent of the total amount and 0.07 per cent of the total value of cod in Other control work carried out by the sales organisations The Norwegian Fishermen s Sales Organisation and the Sunnmøre and Romsdal Fishermen s Sales Organisation have different attitudes toward monitoring fishing operations beyond the ongoing quota control pursuant to Section 7 of the Sea-Water Fisheries Act. In accordance with the decision of the board, Sunnmøre and Romsdal Fishermen s Sales Organisation holds the view that a sales organisation must not carry out active resource control. A sales organisation is owned by the fishermen, and its main task is to provide them with services such as selling fish at the highest possible price. The aforementioned organisation believes that there is a danger of playing a double role by carrying out active checks, for example when fish is landed. In contrast the Norwegian Fishermen s Sales Organisation has roughly eight inspectors who conduct various inspections in addition to actual quota control. The inspection section is relatively independent of the rest of the organisation, partly to avoid conflict of interests. Interviews revealed that approximately 200 inspections are carried out on the premises of business enterprises every year. When the organisation carries out the inspection alone, the inspectors will normally check the scales at the shore facilities, and will also verify that the sales notes are entered correctly. In addition, the inspectors carry out direct inspections of individual vessels. Unlike the Directorate of Fisheries, the sales organisations do not register individual inspections (no overview is prepared of the number of inspections in relation to the number of vessels that are inspected), but the inspections carried out at shore facilities encompass almost boats per year. The sales organisations do not have legal authority to check the catch logbook, and inspectors from the Norwegian Fishermen s Sales Organisation will often carry out inspections in cooperation with inspectors from the regional offices of the Directorate of Fisheries. Over half of some inspections of individual vessels conducted annually by the Norwegian Fishermen s Sales Organisation are carried out in conjunction with the 95

100 directorate. In addition, sales inspections and audits of the accounts are often conducted, always with representatives from the directorate s regional offices, and also with other enforcement authorities if appropriate. For example, documents and storage facilities may be inspected in order to investigate whether the enterprise has failed to register fish. The number of violations detected has declined in recent years. The Norwegian Fishermen s Sales Organisation stated that there is probably some disagreement as to whether sales organisations should conduct inspections to this extent. In submissions on the new Act relating to marine resources, the organisation has expressed the opinion that sales organisations should conduct inspections that extend beyond continuous quota settlement. The sales organisations have access to large amounts of data that ought to be used in resource control to a greater extent than today. In a long-term perspective the sales organisations are also reliant on compliance with all the rules related to fishing operations. According to the Directorate of Fisheries, the Norwegian Fishermen s Sales Organisation and the Norwegian Fishermen s Sales Organisation for Pelagic Fish are the organisations that are most active in conducting inspections in addition to the ongoing monitoring of quotas. The remaining four sales organisations have no operational control. In the directorate s opinion only the sales organisations that actively conduct inspections other than those required by Section 7 of the Act fulfil the control requirements laid down in Section 45a of the Sea-Water Fisheries Act. However, the directorate also reported when interviewed that the two sales organisations that have a wider interpretation of control than the other sales organisations are large organisations that do not necessarily have close contact with individual fishermen and are thus better able to avoid playing an unfortunate double role. The other organisations are smaller and may have close contact with the individual fisherman. This may be inappropriate in connection with inspections. The tax administration and the Customs and Excise authorities have also indicated that in their view the sales organisations should not be too closely involved in inspection work aimed at fishing vessels and fisheriesrelated enterprises on land. According to the Directorate of Fisheries, the EU has also considered it inappropriate for sales organisations to be too closely linked with the directorate in inspection work. As the directorate understands it, the Ministry of Fisheries and Coastal Affairs is in favour of the new Act relating to marine resources prescribing a continuation of current practice as stipulated in Section 45a of the Sea-Water Fisheries Act. In a consultative statement on the new act the Ministry has proposed that the sales organisations be given full access to all documents related to turnover in the individual enterprise. Monitoring of the sales organisations The Directorate of Fisheries has general responsibility for resource control and thus also responsibility for the quota control conducted by the sales organisations pursuant to Section 45a of the Sea-Water Fisheries Act. The directorate has a control function vis-à-vis the sales organisations through the directorate s control activity. The directorate stated when interviewed that it wishes to have a more active control function vis-à-vis the sales organisations for example inspection of systems, routines and other 96

101 functions related to resource control. The directorate has examined these questions in a project on sales organisations 230 in cooperation with the sales organisations. In the OAG s investigation of the management of fisheries resources 231 questions were raised about the Ministry of Fisheries and Coastal Affairs follow-up of funds confiscated by the sales organisations in connection with violations pursuant to Sections 7 and 11 of the Sea- Water Fisheries Act. The sales organisations must report the use of these confiscated funds, which are intended to be used on resource control in particular. An overview from the Ministry 232 shows that all six sales organisations reported on the funds confiscated and their use in Background to resource control The ongoing quota settlement and the registration scheme on which it is founded are largely based on the principle of self-reporting. This means that it is the fisherman/supplier and the buyer/receiver who provide the information on which the quota settlement is based. The principle therefore implies a considerable degree of trust in the industry and also that the industry itself exercises responsibility. In order to ensure that the principles for ongoing quota settlement are complied with and that there is no evasion of the system, the Coastguard and the Directorate of Fisheries monitor selected fishermen. In addition, the directorate inspects other enterprises in the fishing industry. In the following sub-section a description is given of the resource control work of the Coastguard and the Directorate of Fisheries. 6.5 The Directorate of Fisheries inspection activities (inspections on land) Resource input and organisation The Directorate of Fisheries was established in Bergen in 1900 and serves as the advisory and executive body of the Ministry of Fisheries and Coastal Affairs in matters pertaining to fisheries and the management of aquaculture. The directorate shall contribute to fulfilling the general goals of the ministry, such as ensuring effective resource control. The directorate has approximately 425 man-years, including subordinate agencies. Less than 80 man-years are directly used for resource control. The directorate s total budgetary framework varied between roughly NOK 246 million and NOK 304 million in The budgetary framework for 2006 was slightly over NOK 277 million. The directorate has special responsibility for ensuring that the uptake of fish resources from the ocean complies with prescribed national and international regulatory provisions, including set quotas. Control responsibility is laid down in the Sea-Water Fisheries Act, Section and accompanying regulations. A central question in this audit is whether the 230 Project sales organisation/directorate of Fisheries A mapping of the sales organisations and the activities of the Directorate in the areas in which there is joint responsibility for resource control. Sub-report A was issued in January 2006 and sub-report B is to be completed in April The OAG s investigation of the management of fisheries resources, cf. Document no. 3:13 ( ). 232 Received 18 December Act of 3 June 1983 relating to sea-water fisheries, etc. 97

102 harvesting of cod north of the 62 nd parallel is in accordance with the quota provisions established at the annual meetings of the Joint Norwegian-Russian Fisheries Commission. 234 Consequently a key task for the directorate in resource control is to monitor fishermen and other enterprises in the fishing industry in order to check the accuracy of the data given in the prescribed registration scheme for quota control, to detect unregistered catches of fish, and to ensure that fishermen and the fishing industry comply with the quota provisions and other provisions that regulate fishing operations. In addition to verifying the accuracy of the registered data and checking catches, inspections are directed at fishing vessels use of gear and the percentage of by-catch and undersized fish. The directorate s seven regional offices are responsible for the practical implementation of the monitoring work. This varies from region to region both in extent and content, for example as a result of the variation in fisheries and differing fleet and shore facility structures etc. The directorate has the prime responsibility for monitoring the control work of the regional offices in line with the guidelines set by the Ministry of Fisheries and Coastal Affairs. An essential requirement in this connection is that resource control must be effective. There are approximately 8000 Norwegian fishing vessels and 1500 foreign fishing vessels that carry out roughly landings of fish to about 1000 approved landing and shore facilities as well as to buyers on land on a yearly basis. Thus effective surveillance does not entail a complete physical inspection of each landing in addition to the monitoring that takes place through the ongoing quota control. The regional offices must ensure that the control work has a preventive effect, while at the same time inspections must be directed as far as possible at the objects where it is most probable that violations of the regulations will be detected Inspections by the Directorate of Fisheries General remarks on the inspection work number of inspections and violations of the regulations that were detected Table 10 shows the total number of inspections 235 carried out by the regional offices of the Directorate of Fisheries, the number of violations of the regulations detected and the corresponding detection rate in the period from Table 10 Number of inspections, violations of the regulations detected and the detection rate per year for the directorate s regional offices in Inspections, violations of regulations, detection rate /Year Total number of inspections Total number of violations of the regulations detected Detection rate (per cent) Source: statistics compiled by the Directorate of Fisheries and five of the regional offices 234 Cf. Chapter 1.2. The Barents Sea fisheries, and Chapter 5, Topic 2: Implementation of decisions taken by the Fisheries Commission, for a description of the Joint Norwegian-Russian Fisheries Commission. 235 Based on the types of inspection work defined as control in the annual report of the Directorate of Fisheries for 2005, i.e. document check, export control, catch inspection, full inspection, storage facility inspection, netpen inspection, gear inspection, transport inspection, yield control and weight inspection. 98

103 The table shows that there was a decline in the total number of inspections in There were 1685 fewer inspections, corresponding to a decline of approximately 26 per cent in the number of inspections from 2003 to The Directorate of Fisheries inspection statistics reveal that the decline in the number of inspections applies to most regions. According to the inspection statistics, the number of document checks 236 in particular fell during the period. The table reveals that the number of violations of the regulations detected varied between 317 and 512 in this period. Among these were minor violations resulting in a warning as well as serious contraventions that were reported to the police. 237 The table shows that on average the regions detected violations of the regulations in between 5.9 and 8.7 per cent of the inspections. Regional inspection work Roughly 98 per cent by weight of all cod caught north of the 62 nd parallel in was landed in Finnmark, Troms, Nordland, Trøndelag and Møre, and Romsdal. 238 In the following, it is mainly inspection activities in these regions in that will be reviewed. The regional offices of the Directorate of Fisheries carry out various inspections in their work to verify obligatory reporting data and to ensure that the fishing industry complies with the current legal provisions on fishing operations. These inspections can be divided into three main groups. The first main group consists of inspections targeted at individual landings of fish and includes inspection of relevant documentation and perhaps the catch when a vessel delivers fish to shore. The second main group consists of inspections of fish landing facilities and other shore facilities. The third main group consists of inspections targeted at vessels at sea. In addition to these three main inspection groups, the regions also conduct other kinds of inspections such as verification of transport shipments and exports to a lesser degree. The scope of this inspection work is described below Main inspection group I: inspection of individual landings 239 of fish Approximately 80 per cent of the inspections conducted by the regions target the or so landings of fish that take place in Norway every year. A landing inspection can be defined as an inspection of a single vessel in connection with a single landing of fish. The fish landing facilities or the shore facility that receives or stores the fish may also be included in a landing inspection. 240 When inspecting individual landings of fish, the regional offices normally conduct either a document check or a full inspection. In a document check the documents, for example the catch logbook and the sales note, are inspected either on their own or against each other in 236 The term document check will be explained in the next section. 237 Cf. Chapter 7, Topic 4: Sanctions for violations of acts and regulations relating to the use of living marine resources in Norway. 238 Seen in relation to the total number of landings of cod, approximately 99 per cent of these landings have taken place in these regions. 239 No exact figures are available for individual landings of fish. The Directorate of Fisheries uses the number of sales notes as an estimate of the number of landings. The number of individual landings will be somewhat lower than the number of sales notes. This particularly applies in the case of a single landing by a deep-sea fishing vessel when a number of sales notes may be issued. There is better correlation between the number of sales notes and the number of landings by coastal fishing vessels. Landings by coastal fishing vessels constitute approximately 95 per cent of all landings annually. 240 For example, during a landing inspection, sales notes that are issued by the buyer will be covered by the inspection. 99

104 order to verify information from other documentation. A full inspection is a physical check of the catch against the same documents as in a document check. Thus a full inspection will document to a greater degree whether the actual catch tallies with the obligatory reporting data data that in the final instance will be reported to the sales organisations and the Directorate of Fisheries as part of the ongoing quota control. 241 According to statistics from the directorate, there was an even distribution of the percentage of document checks and full inspections in the landing inspections. The statistics also reveal that the percentage of full inspections increased to approximately 65 per cent in Inspection coverage of landings by Norwegian vessels in the individual region Table 11 shows the percentage of landings of all fish by Norwegian coastal fishing vessels, deep-sea fishing vessels and the two categories combined that were inspected in the selected regions, and the total percentages in Landings by Norwegian vessels constitute 95 per cent of the total number of landings. Table 11 Average inspection coverage per year of landings by Norwegian vessels, distributed between the coastal fishing fleet and the deep-sea fishing fleet, and the total for Per cent Inspection/Region Finnmark Troms Nordland Trøndelag Møre og Total Romsdal Inspection coverage coastal Inspection coverage deep-sea Inspection coverage combined fleets Source: statistics compiled by the Directorate of Fisheries and five selected regional offices General inspection level of landings of fish The table shows that the average percentage of landings of all fish from Norwegian vessels inspected on an annual basis varied from 0.6 per cent in Trøndelag to 2.4 per cent in Møre og Romsdal in On average the total inspection coverage for the selected regions was 1.8 per cent. The table also illustrates that total inspection coverage of landings by the coastal fishing fleet varied between 0.5 per cent in Trøndelag and 2.1 per cent in Møre og Romsdal in the same period. The total inspection coverage for landings by the coastal fishing fleet in the five selected regions was approximately 1.5 per cent in In addition, the table shows that landings by deep-sea fishing vessels are inspected more frequently than landings by coastal fishing vessels. On average 6 per cent of the landings from deep-sea fishing vessels were inspected annually in All the selected regions pointed out that the use of sales notes as an expression of the number of landings does not give an exact picture of the inspection coverage for deep-sea fishing vessels. The reason is that when ocean-going vessels deliver fish, several sales notes may be issued. This is due firstly to the fact that when fish is landed from a deep-sea fishing vessel, the fish delivered may be bought by different enterprises. Since a sales note must be completed for each of these purchases, one landing may result in the completion of a number 241 Cf. inspection manual of the Directorate of Fisheries and interviews with four regional offices. 100

105 of sales notes. 242 Another factor that may affect the number of sales notes in relation to the number of landings is that separate sales notes must be issued for each quota sector where the vessel has fished. 243 Even when inspections of several or all of these split deliveries and sales notes were carried out, the regional offices reported that they had generally been registered as one inspection. All the regional offices therefore pointed out that given these factors, the inspection coverage for deep-sea fishing vessels will be higher than the statistics on inspections indicate. However, there are also landings by deep-sea fishing vessels where only one sales note is issued. This applies if the buyer of the fish is also the owner of the vessel, for example. Registrations in the Directorate of Fisheries inspection database show that four regions have registered inspections of one vessel on the same day as two inspections. In a couple of regions, several double registrations of this kind have been recorded. Nevertheless, such inconsistent double registration is limited in extent compared with the total number of inspections and will not affect the inspection coverage rate for deep-sea fishing vessels significantly. The inspection coverage rate for deep-sea fishing vessels given in Table 11 therefore represents a minimum figure for inspection activities targeted at deep-sea fishing vessels. Nevertheless, this will only affect the total inspection coverage to a limited extent because of the large number of landings by coastal fishing vessels. In the case of the coastal fishing fleet, all regions reported that there is a far better correlation between the number of sales notes and the number of landings. Another way of expressing inspection coverage is to compare the quantity of fish inspected with the total quantity landed. However, the Directorate of Fisheries does not have sufficient statistics for to make such a comparison. The reason is that procedures for the registration of data on quantity inspections were changed in , and the registrations have been deficient. For example, the new inspections database 244 reveals a lack of data on the quantity of fish inspected in approximately 30 per cent of the full inspections registered. The directorate stated when interviewed that the registration of inspection data has not been sufficiently comprehensive to ensure a complete overview of the extent of regional inspections. Reasons for the variation in inspection coverage The table shows that inspection coverage of individual landings of fish by the coastal fishing fleet is relatively similar to the total inspection coverage in the individual region. The reason for this is that 95 per cent of the total number of landings 245 by Norwegian vessels in the selected regions was made by coastal fishing vessels in The extent of the inspections of these vessels will therefore be a significant factor for the total inspection coverage of individual landings of fish. 242 In cases where landed fish were not sold immediately on landing, figures from the Norwegian Fishermen s Sales Organisation show that on average 3.4 sales notes were issued per landing declaration in Corresponding figures for Sunnmøre and Romsdal s Fishermen s Sales Organisation were 6 7 sales notes per landing declaration in 2004 and The various quota sectors correspond to different areas of jurisdiction, such as the Norwegian Economic Zone around the mainland, the Svalbard Fisheries Protection Zone around Svalbard, the fisheries zone around Jan Mayen and the Russian Economic Zone. 244 Cf. chapter on the quality of the Directorate of Fisheries control activities for a description of the documentation system for the inspection work landings took place in the five selected regions in

106 The two regions that had the highest inspection coverage of the coastal fishing fleet reported that carrying out inspections of a large number of the smaller vessels when they were berthed alongside a quay was a simple procedure and did not require many resources. One region stated that in this period too many inspections of small boats had been carried out. It is clear from the inspection statistics, for example, that the number of violations of the regulations detected through these inspections was relatively low compared with other inspection activities. Another factor that may explain variations in inspection coverage is the percentage of document checks and full inspections in the various regions. The two regions with the lowest inspection coverage are also the regions that had the highest percentage of full inspections compared with other regions. An average document check when a vessel lands demands fewer resources than a full inspection. The reason for this is that during a full inspection one or more inspectors must be present at the unloading and weighing of the entire catch. 246 The variations can also be attributed to the fact that there are differences between the regions as regards the distribution of inspection efforts between landing inspections and inspections of shore facilities. This is described in the following sub-section on inspections of fish landing facilities and shore facilities. The reasons for variations in the extent of inspections in connection with resource distribution will be explained in the chapter on the use of resources. Decline in the number of landing inspections and reasons for the decline Parallel with the decline in the total number of inspections, cf. Table 10, there was also a decline in the number of landing inspections from 2003 to Inspection statistics show that there was a decline in four out of the five selected regions. In the Trøndelag region there was an increase in the number of landing inspections. However, this region conducts fewer inspections (3 per cent of the total number of inspections in the five regions) than the other regions, partly because there are fewer landings and a smaller quantity of fish is landed compared with the other regions in the sample. When questioned about why the number of inspections fell in , the selected regions point out that one of the reasons was that there was a change in the control arrangements. This change was based on an increased emphasis on conducting a risk analysis of potential inspection subjects prior to conducting an inspection. In line with guidelines laid down by the Directorate of Fisheries, there has been a change of direction towards fewer document checks and more comprehensive follow-up inspections. 247 The inspection statistics also show that the number of document checks also declined in this period and that the regions had more follow-up inspections such as storage facility and sales inspections in 2005 compared with 2003 (cf. the chapter on follow-up controls). However, in total there was no increase in the number of full inspections from 2003 to Another explanation of the decline in the number of inspections in the individual region is that there were organisational changes in regional level administration through the establishment of Sjøtjeneste Nord (Sea Patrol Service North) and Sjøtjeneste Sør (Sea Patrol Service South) in 2005 (cf. section below about inspections at sea). All regions must allocate resources to inspections at sea, but inspections by the Sea Patrol Services are registered separately. Earlier all inspections, including those at sea, were attributed to the 246 In the inspection database that was used from 2003 until the autumn of 2005, in cases where the use of resources has been registered it emerges that the number of hours spent on an average full inspection is approximately twice the number of hours spent on an average document check on landing. 247 Cf. also letter of allocation from the Directorate of Fisheries to the regions in

107 region where the inspection had taken place. Nevertheless, the number of inspections conducted by the Sea Patrol Services in 2005 does not counterbalance the decline in the number of inspections. Inspection statistics show that the number of inspections conducted was reduced in the second half of 2005 in particular. One of the regions pointed out in this connection that the overtime budget had been reduced in 2005 and that this had led to a decline in inspection activities in the second half of Inspections of the various vessel length categories independently of the number of landings Vessels fishing with conventional fishing gear are divided into four length categories and a total quota is set for each length category distributed between the vessels in each group. 248 Figure 1 shows the average annual frequency of inspections in the various length categories, including deep-sea fishing vessels, in An inspection frequency of 100 per cent means that all vessels in the length category in question will be inspected in the course of a year. Figure 1 Average annual inspection frequency for the various vessel length categories on a logarithmic scale during the period % 100 % 10 % 1 % < 10 m 10-15< m 15-21<m 21-28< m Inspection?15-21< mfrequency Deep sea fishing vessels Source: statistics compiled by the Directorate of Fisheries and the five regional offices The figure shows that the average annual inspection frequency varied from just under 7 per cent for vessels under 10 metres to over 100 per cent for vessels above 15 metres in the course of a year. This means that on average it will take almost 15 years for a vessel under Cf. Chapter 8, Topic 5: Distribution and filling of quotas, for a description of the quota allocation system. 249 In the analysis the vessels that are entered in the inspection database with a radio call signal are linked to data in the Directorate of Fisheries register of vessels as of 10 October The call signal will remain the same for a fishing vessel regardless of whether the name or vessel markings are changed. The vessels that are not registered with a radio call signal are included in the calculation in cases where both the name of the vessel and the registered markings are identical. In addition some vessels are included where the registered marking was identical but the name of the vessel was different as a result of errors in entering data and/or inconsistent ways of writing. This meant that the majority of altogether vessels that had been inspected (including approvals of Greenland halibut) and registered in the inspection database, could be identified in the register of vessels. The calculation of inspection frequency is based on the average number of vessels in the individual length categories in 2003, 2004 and

108 metres to be inspected while vessels over 15 metres will be inspected an average of at least once a year. Inspections of individual landings of cod In order to examine the extent to which the regions have inspected individual landings of cod fished north of the 62 nd parallel, these inspections have been differentiated from the total number of landing inspections. The results are presented in Table 12. When inspections targeted at cod were focused on separately, it became clear that the data registered in the inspection database used by the Directorate of Fisheries in the period from 2003 to the autumn of 2005 did not give a representative picture of the inspections of cod conducted by the individual region. The reason for this was that only one species of fish was registered for each inspection, irrespective of the number of species that were included in the inspection. In line with guidelines set out by the directorate, only the species that was best represented was to be registered. This means that in the cases where a region had inspected cod, but where there was a larger number of another species, it was not clear from the inspection database that the inspection had also included cod. However, the registration of the amount also included the aggregated number of all fish species inspected. Therefore there were no precise data on the number of inspections of landings of cod or the amount of cod that had been inspected in the period from 2003 to the autumn of In order to acquire a more accurate picture of inspections of cod by the individual region in the period from , four of the regions were asked to review the inspection forms 250 for this period and to count all the inspections of cod and the corresponding quantity of cod. In the current inspection database all the species that have been inspected are registered with the corresponding quantity for most types of inspection. 251 Table 12 shows the average yearly inspection coverage of landings of cod fished north of the 62 nd parallel for each of the selected regions in addition to the average yearly inspection coverage for these regions seen as one in Table 12 Average yearly inspection coverage of individual landings of cod from registered vessels per region and in total for Per cent Inspection/region Finnmark Troms Nordland Trøndelag Møre og Romsdal Total Inspection coverage Source: Statistics compiled by the Directorate of Fisheries and the five regional offices The table shows that the total inspection coverage of individual landings of cod fished north of 62 N was on average approximately 1 per cent per year for all the selected regions in This means that an average of just over one in 100 landings of cod fished north of the 62 nd parallel was inspected in this period. Table 12 shows that the inspection coverage of individual landings of cod fished north of 62 N is lower than in the total inspection coverage for the regions, cf. Table 11. Table 12 also shows that the two regions with the highest inspection coverage per landing for all 250 All the fish species and quantity inspected must be specified individually. 251 Cf. chapter on the quality of the Directorate of Fisheries inspection activities. 104

109 species have the highest inspection coverage for landings of cod. The Finnmark region conducts most inspections of individual landings, with an average inspection coverage of 1.8 per cent, while the Møre og Romsdal region had an inspection coverage of approximately 1.1 per cent. In the three other regions inspection coverage has been just below 1 per cent on average. The inspected quantity expresses the extent of the inspections in a different manner. Table 13 shows the percentage of the total quantity of cod landed inspected in the landing inspections mentioned above. The figures are based on later registration of cod inspection cases in the individual region. The table shows that the percentage of the quantity of cod landed in the individual region varied from 4 per cent in Finnmark to over 20 per cent in Møre og Romsdal. The amount of cod that had been fully inspected on landing varied from 2.2 per cent in Nordland to over 12 per cent in Møre og Romsdal. However, the figures for Finnmark are deficient because the quantity inspected was not registered on the registration forms 252 in the case of almost 300 inspections in This constitutes almost 40 per cent of document checks and 2 per cent of full inspections. Table 13 Quantity of landed cod inspected in all landing inspections (including document checks of shore facilities) and in full inspections, in relation to the total quantity of cod landed in the individual region in Inspections/region Finnmark Troms Nordland Møre og Romsdal All landing inspections253 Full inspections Source: Statistics compiled by the Directorate of Fisheries and the four regional offices Landings statistics compiled by the Directorate of Fisheries show that there are differences in the landing patterns for cod in the various regions. Almost 80 per cent of the total amount of cod landed in Finnmark and Nordland in this period was landed by coastal fishing boats. In the Møre og Romsdal region almost 90 per cent of all cod was landed by deep-sea fishing vessels. In the Troms region the amount of cod landed was divided evenly between coastal fishing vessels and deep-sea fishing vessels. Monitoring of landings of cod from Russian and third-country vessels Monitoring of Russian fishing operations At present all Russian fishing vessels that call at Norwegian ports are inspected. 254 In addition to detecting violations of the regulations, the inspections are intended to gather information that can ensure the best possible basis for analysing Russian fishing operations in the Barents Sea. In many cases the inspection of Russian vessels is confined to collecting the documents on board. In one region for example, approximately 98 per cent of the inspections were document checks while 2 per cent were full inspections. The documents are not 252 Cf. chapter on the quality of the monitoring work of the Directorate of Fisheries for a description of the inspection form. 253 Document checks targeted at onshore facilities are also included in the calculation of quantity. 254 Cf. requirements in this respect in the letter of allocation from the Directorate of Fisheries to the regional offices in All the regions interviewed reported that all Russian fishing vessels were inspected. 105

110 necessarily collected in conjunction with a landing but also when vessels are refuelling or undergoing repairs. Documents from vessels involved in trans-shipment are also collected. All documents acquired and the results of inspections as well as the ordinary case-processing documentation in the individual region are submitted to the regional office in Finnmark (Vadsø) for further analysis. The Finnmark regional office has special responsibility for collecting and analysing information procured when inspecting Russian vessels. In addition to all information from the other regional offices, the office receives information from the Coastguard and the Russian authorities. 255 The office also receives information from several foreign countries about landings carried out by Russian vessels. However, according to the Directorate of Fisheries a few European countries have refused to release information about Russian landings in third countries to Norway. 256 In light of all acquired and received information, the Finnmark regional office conducts analyses of individual Russian vessels and shipping companies, and quota accounts are prepared for the individual vessel as well as an overall quota account. Altogether this provides an excellent overview of Russian fishing operations in the Barents Sea, according to representatives of the Finnmark region. The analysis work forms the basis of reports on overfishing compiled by the Directorate of Fisheries in recent years. 257 The inspections seldom reveal violations of the Norwegian regulations by Russian fishing vessels. Data registered in the inspection databases show that inspections targeted at Russian vessels in the regions have detected such violations on two occasions. The number of landings and the amount of cod delivered by Russian vessels vary from region to region. Roughly 80 per cent of the 2300 sales notes issued in connection with landings of cod by Russian vessels in were issued in the Finnmark region. In terms of quantity, 75 per cent of a total of tonnes of Russian cod was landed in Finnmark in the same period. In this connection it is relevant to mention that a new agreement on port state controls under the aegis of the NEAFC cooperation was concluded in November A central element of the agreement is that 15 per cent of all foreign landing of frozen fish shall be subject to a full inspection. The Finnmark region must therefore strengthen inspection of Russian landings. Inspections of other foreign vessels landing cod The inspection statistics compiled by the Directorate of Fisheries show that inspection coverage of individual landings by third-country vessels totalled over 40 per cent in However, the number of landings from third-country vessels and the amount of cod delivered to Norway is limited. By carrying out simple inspections the regions can achieve a high inspection coverage. Fishermen s views on the level of control at fish landings In the questionnaire survey conducted among fishermen who fished cod actively in , some 65 fishermen (63 per cent) reported that they had experienced inspections by the 255 Cf. Chapter 5, Topic 2: Implementation of decisions made by the Fisheries Commission. 256 Cf. section 6.10 Control and enforcement agreements with other countries. 257 Cf. section 4.2. Estimation of total catch of cod in 2004 and Cf. section 6.10 Control and enforcement agreements with other countries. 106

111 regional offices of the Directorate of Fisheries from Their replies to questions on whether they felt that the Directorate of Fisheries should conduct more landing inspections than is the case today are distributed as shown in Figure 2. Figure 2 Fishermen s views on whether more landing inspections should be conducted than is the case today 45 % 40 % 35 % 30 % 25 % 20 % 15 % 10 % 5 % 0 % 40 % Completely agree 18 % Partly agree 11 % Partly disagree 23 % Completely disagree 8 % Don t know/ Not applicable Percentage Source: questionnaire survey targeted at 103 active fishermen, OAG September 2006 The figure shows that almost 60 per cent of all those inspected by the Directorate of Fisheries completely or partly agreed that more landing inspections should be conducted than is the case today. The figure also reveals that 23 per cent completely disagree that there should be more inspections. If the responses of all 103 respondents are included, the majority are positive to an increased number of landing inspections. Among respondents who gave comments on the extent of inspections, there are somewhat divergent views on the area in which inspection effort should be strengthened. Some say that coastal fishing vessels should be inspected more frequently while others feel that there should be more inspections of deep-sea fishing vessels. Several of those who answered that they completely disagree that there should be more landing inspections pointed out that it can be challenging to estimate the catch in the catch logbook and that the inspectors do not take this into account. The fishermen were also asked if they regarded it as easy to avoid being the object of a landing inspection. Some 20 per cent of the 103 respondents said that they completely or partly agreed with this statement while over 53 per cent completely disagreed. In answer to the question of whether it was easy to conceal that the catch in the cargo was over-large, In the questionnaire, the regional offices of the Directorate of Fisheries were called the inspecting service, with reference to the fact that these are the regional offices of the Directorate of Fisheries. Cf. chapter on use of resources for an explanation of various terms used by the agency. 107

112 per cent of those who had been inspected completely or partly agreed with this statement. However, the biggest percentage only partly agreed with this Main inspection group II: inspections of shore facilities 260 In addition to inspecting fishing vessels in connection with the landing of fish, the regions also conduct inspections in which shore facilities are the primary inspection object. This is the second main type of inspection carried out by the regional offices and constituted approximately 20 per cent of all inspections conducted by the Directorate of Fisheries in the regions in Among other measures, the directorate requested regional offices to increase the number of inspections of shore facilities in the letter of allocation to the regions in The advantage of this type of inspection is that it can reveal whether the enterprise has contravened the regulations while at the same time several landings of fish can be re-examined in one inspection. Inspections targeted at shore facilities will vary both as regards the type of inspection and its extent. Inspection statistics compiled by the directorate show that approximately 80 per cent of roughly 2400 inspections targeted at plants and shore facilities in were document checks. These generally consist of examination of sales notes for a particular period. Thus documentation for a number of landings will be checked in one inspection. Document checks at shore facilities can reveal unlawful trans-shipment of fish or unregulated joint fishing operations between vessels. However, these inspections will not include physical inspection of the catch. Neither the number of sales notes nor the quantity of fish registered in the sales notes examined in these inspections appears in the directorate s inspection statistics. In addition to document checks, storage facility and sales inspections are other key instruments in the inspection of shore facilities. In the storage facility inspections the physical quantity of fish that is being stored at a facility is checked against key documents such as landing declarations and sales notes. A sales inspection is a broadly-based control where the quantity of fish registered on the landing declarations and sales notes is checked against documentation on sales and other relevant documents at a fish landing facility over a certain period of time. Some sales inspections may encompass all relevant documentation on all transactions that have taken place in an enterprise in the course of one to two years. A main objective of the sales inspections is to detect any attempts to withhold fish from registration and quota accounting. The system of registration can be evaded if a facility buys fish from fishing vessels without reporting the purchase to the sales organisations. As part of or prior to a sales inspection, the regional offices will as a rule calculate a datum point of the enterprise s actual stocks of fish. Stocktaking will then take place to ensure that there is a complete overview of the amount of fish in the relevant storage facilities of the enterprise at a given point of time, prior to a closer document check In the investigation this covers all storage facilities, fish landing facilities, processing plants and other shore facilities. 261 The regional offices also reset stocks to zero separately. 108

113 Storage facility and sales inspections may cover a large number of individual landings. Therefore individual landings that have been inspected previously may be indirectly reinspected in the course of a storage facility or sales inspection. Table 14 shows the average inspection coverage of all shore facilities for the selected regions in The inspection frequency of 100 per cent means that on average all fish landing facilities and plants are inspected during the course of a year. Table 14 Average yearly inspection coverage for all shore facilities per region and the total for these regions in Per cent Region Finnmark Troms Nordland Møre og Romsdal Total Total control coverage Source: Statistics compiled by the Directorate of Fisheries and the five regional offices The table shows that the average inspection coverage of shore facilities varies from 90 per cent in Møre og Romsdal to just over 600 per cent in Troms. The average total inspection coverage for the four selected regions was 218 per cent in This means that on average shore facilities in the four selected regions can expect to be inspected twice a year. In Troms, shore facilities were inspected on average six times a year in The corresponding figure for Møre og Romsdal was once a year. According to the inspection statistics, one reason for the large variation in the degree of inspection coverage is that the percentage of document checks in relation to the total number of inspections carried out at plants varies from region to region. Inspection statistics show that the Finnmark, Troms and Nordland regions have had more document checks when fish landing facilities are inspected. In the Møre og Romsdal region this is only to a limited extent used as an inspection method at facilities. In this region only storage facility or sales inspections are carried out as a rule and these demand more resources than document checks. Data on the use of resources registered in the directorate s inspection database show that the average sales inspection and storage facility inspection takes over 23 hours to conduct, while the corresponding figure for a document check at a facility is approximately three hours. Another reason for these variations is that not all facilities in the individual region are regarded as of interest in an inspection perspective. 262 Table 15 shows the degree to which storage facility inspections and/or sales inspections have been included in inspections of shore facilities in the selected regions in Table 15 Total storage facility and sales inspections at shore facilities, per region and overall for Facilities inspected as a percentage of all facilities Region Møre og Finnmark Troms Nordland Romsdal Total Total inspection coverage Source: Statistics compiled by the Directorate of Fisheries and the four regional offices 262 Interview with one of the regional offices of the Directorate of Fisheries. 109

114 The table shows that the total percentage of shore facilities that underwent storage facility inspections and/or sales inspections varied from 6.2 per cent in the Finnmark region to over 50 per cent in the Troms region in The inspection statistics do not reveal how comprehensive the individual inspections were. According to the directorate, each individual inspection should have been documented by an inspection report. As previously mentioned, a sales inspection may cover an enterprise s sales for from two days up to two years. The inspection statistics show that the requirement in the directorate s guidelines that the regions must prioritise this type of inspection resulted in the regions conducting an increased number of inspections of this kind from 2003 to Inspections at fish landing facilities and other cod-processing plants A number of the document checks at fish landing facilities and other facilities will have been targeted at documentation that includes cod. In the directorate s inspection statistics, it is not clear in a number of inspections which species of fish have been monitored. Two out of three regions in which document checks are widely used as a means of inspecting facilities estimate that 90 per cent and two-thirds, respectively, of all inspections at facilities will have included inspection of cod to a greater or lesser extent. In order to acquire a clearer overview of the extent of storage facility and sales inspections targeted at fish landing facilities and cod-processing plants, four of the regions were asked to register retrospectively the number of inspections of this type and the quantity inspected in The results of this review are shown in Table 16. Table 16 Average annual storage facility and sales inspections at cod-processing facilities, per region and overall for Facilities inspected as a percentage of all facilities Region Møre og Finnmark Troms Nordland Romsdal Total Inspection coverage, numbers Inspection coverage, quantity Source: Statistics compiled by the Directorate of Fisheries and the four regional offices The first line in the table shows the percentage of cod-processing plants at which the regional offices inspected the storage facilities or carried out a sales inspection. In all, approximately 10 per cent of all fish landing facilities and cod-processing plants were inspected by means of storage facility or sales inspections in this period. In comparison almost 30 per cent of all shore facilities were subject to this type of inspection in the same period (cf. table 15). The table shows that the Finnmark region did not conduct storage facility or sales inspections at fish landing facilities and cod-processing plants in The total inspection percentage in the other regions varied from 5.6 per cent in the Troms region to almost 15 per cent in the Nordland region in The inspection statistics show that Nordland as well as Møre og Romsdal had a larger number of storage facility inspections than Troms. None of the three regions performed sales inspections to any significant degree. Table 16 also reveals that the percentage of the total quantity of cod landed that was inspected in storage facility or sales inspections varied from just over 1 per cent to almost 5 per cent in the three regions that conducted these types of inspection in Reasons for fewer sales and storage facility inspections at cod-processing plants 110

115 Inadequate yield factors When interviewed all regions expressed the view that there are a number of challenges associated with inspecting processing plants, fish landing facilities and storage facilities for whitefish, including cod. In storage facility and sales inspections the quantity of fish bought is checked against the quantity of fish sold during a fixed period of time as indicated in the following model: Opening balance Quantity of fish + Purchase Quantity of fish Sales Quantity of fish = Closing balance Quantity of fish If the inspection detects a discrepancy in the closing balance in relation to the other components that cannot be attributed to shrinkage, this may indicate that the fish has been withheld from registration on delivery to the plant. However, on first-hand purchase of fish the quantity is given as round weight or raw weight 263 and this presents a challenge. Before the fish is resold, it may be processed into cod fillet or a conventional product such as salted fish, clipfish or stockfish. Consequently, the inspection work must be based on factors that facilitate calculation of what the quantity of processed fish is equivalent to in round weight. However, all the selected regions reported that the yield factors for cod etc. are inaccurate. This applies to conventional products such as salted fish and stockfish in particular. Yield factors have been stipulated for these products 264 but these factors are based on older methods of salting the fish that are not adapted to modern production processes. One reason for this is that the constant development of new methods of production makes the previously determined yield factors invalid. In the absence of correct yield factors, all the selected regions reported that storage facility and sales inspections had only been conducted to a limited extent because the results of these inspections may be unreliable. Several of the regions pointed out that if an enterprise is to be reported on the grounds of irregularities based on yield factors, there must be absolute certainty that the factors on which the inspection was based will be deemed to be valid in a court action. The regions have experienced that detections of discrepancy in quantity have been explained away by reference to differing yield factors, and this has been allowed by the court. One of the regions reported that several earlier sales inspections of cod had revealed considerable discrepancies in quantity but the region had decided not to report the matter because of uncertainty related to the yield factors. 265 The Directorate of Fisheries stated when interviewed that the enterprises are not obliged by fisheries provisions to have an overview of the yield factor for processing. The directorate shares the view of the regions that invalid yield factors in the whitefish sector represent a major challenge in inspection work. Measures to improve yield factors In order to strengthen methodology in the inspection of landing facilities and cod-processing plants, the Directorate of Fisheries has initiated work to develop and calculate new yield 263 The raw material may for example be gutted and headed fish or fillet. For these products, conversion factors have been established to permit conversion back to round weight. 264 Norske omregningsfaktorer [Norwegian conversion factors] version IV, Directorate of Fisheries, 1 November Cf. Chapter 7, Topic 4: Sanctions. 111

116 factors. The directorate has decided that the Troms region must pursue work to study methods of developing valid yield factors in the salted fish sector. The directorate has also set out guidelines requiring all plants in the individual region to be studied. In the directorate s view, a key objective of this examination is to establish yield factors in the individual enterprise where this is relevant. The directorate has instructed the regions that the review of yield factors must be accomplished in cooperation with the enterprise to ensure that the result is consensual. The directorate recognises that the calculation of yield factors will not be a single operation but must take place continuously since, for example, new products are constantly being developed. A description of the procedure will be drawn up for the region, and this will stress that yield factor tests must be an integrated part of the inspections where this is relevant. The directorate will provide a description of how the sampling of yield is to be carried out. All the selected regions stated that they had commenced studies of the relevant plants and that efforts will be or have already been initiated regionally in order to assess which factors can be utilised in the conventional whitefish sector. One region reported plans for tests at enterprises where, for example, cod is monitored from the time it is defrosted until it is a finished clipfish product. Some regions stated that yield factors are complicated because they can vary throughout the year and may depend on salt content and degree of dryness. Overview of storage facilities and transfers In addition to the overview of yield factors, it is important as a rule in a sales or storage facility inspection to have an overview of the fish inventories of the individual enterprise. The regions reported that the enterprises may have an overview of inventories of fish in a sales/storage facility inspection in the form of storage facility accounts. However, several regions pointed out that an inspection cannot be based on such storage facility accounts. One of the regions stated that all documentation relating to an infringement must be based on the Directorate of Fisheries own calculations, especially if the enterprise is to be reported for contraventions that have been detected. Stocktaking can be particularly challenging in big freezing plants with large quantities of fish. If the enterprise s own inventory is used as the basis of a report to the police, the enterprise has explained this away on occasion by alleging that its own inventory has been deficient. Moreover, another region points out that there should be more stringent requirements on keeping an inventory and an overview of the fish that the individual enterprise has in its storage facilities and facilities. In this connection the regions also mentioned that tracking fish that is transported between different plants owned by the same enterprise is challenging. There are no requirements for documentation of this type of transfer. This undermines the possibility of conducting effective inspections. One of the regions stated when interviewed that there should be a legal basis for demanding documentation of transfer of fish between plants. The Directorate of Fisheries reported when interviewed that the regions cannot demand an overview of inventories or transfers to be submitted within the same enterprise. The directorate has received requests from some regions to prepare authorisations permitting the regional offices to demand this type of information. In the opinion of the directorate, a large number of pertinent authorisations already exist, but there is a lack of specific regulations. The directorate will assess whether requirements should be introduced that will instruct the enterprises to maintain an overview of inventory and to submit information on inventories and transfers of catches between the enterprise s various plants to the authorities. 112

117 Fishermen s view of inspections at shore facilities The fishermen who took part in the aforementioned questionnaire survey were asked to give their opinion on whether the Directorate of Fisheries should increase inspection efforts at fish landing facilities instead of monitoring fishermen. Almost 60 per cent of the 65 fishermen who had experienced inspections by the directorate answered that they agreed completely or partly with this statement. Approximately 25 per cent answered that they disagreed completely or partly that inspections should be targeted to a greater degree at shore facilities than at fishermen Main inspection group III: the Sea Patrol Service (Sjøtjenesten) and the Surveillance Service In addition to regional inspection work via landing inspections and inspection of shore facilities, the Directorate of Fisheries monitors and inspects fishing operations at sea via the Sea Patrol Service (Sjøtjenesten) and the Surveillance Service respectively. The Sea Patrol Service The Sea Patrol Service is divided into two entities one for northern Norway and one for southern Norway. 266 Sea Patrol Service North is managed by the regional office in Troms and conducts surveillance along the coast of Finnmark, Troms and Nordland. Sea Patrol Service South is managed by the regional office for Møre og Romsdal, and its area of responsibility stretches mainly from Trøndelag to the Swedish border. The responsibility of the Sea Patrol Service is to conduct surveillance at sea and carry out inspections to detect contraventions such as fishing with unauthorised gear, fishing illegal species, discarding fish and fishing in closed areas. Surveillance at sea primarily consists of boarding vessels in order to monitor fishing operations. Sea Patrol Service North has two vessels at its disposal for this work. Both vessels are manned alternately by officials from the Nordland, Troms and Finnmark regions. Sea Patrol Service South has one vessel at its disposal manned by officials from the Møre og Romsdal region. The presence of these vessels in the various regions varies according to the fisheries season. Sea Patrol Service North s surveillance work targets coastal cod and other species. It is important to monitor the intermixture of cod as a by-catch in herring fisheries along the coast. Another central fishery is the Lofoten fishery where the directorate s Nordland regional office monitors fishermen s compliance with user-driven regulations. 266 The organisation of the Sea Patrol Service was changed in Earlier the directorate had the responsibility for coordinating tasks including the preparation of sailing schedules. The individual regional office was responsible for the vessels when the vessels were at their disposal. According to the Directorate of Fisheries, the Møre og Romsdal region and the Troms region were given responsibility for coordination of the Sea Patrol Service s vessels to rationalise and to ensure better coordination of the surveillance work. 113

118 Box 8 The Lofoten fishery The Lofoten fishery is a seasonal fishery for mature spawning cod in Lofoten in the period between February April. It is one of Norway s most traditional fisheries and goes as far back as history and oral narratives can relate. Every winter mature cod migrate to the coast to spawn. Most of the cod migrate in February/March to Vestfjorden where the most stable spawning grounds are situated. Originally the Lofoten fishery was carried out with a hand-line, but around 1700 longlines and nets were taken into use. In 1857 an act relating to Lofoten fishery came into force, in which the principle was apportionment of different sea areas for fishing gear that could not be used in the same area. Lofoten fisheries are regulated today by the Sea-Water Fisheries Act. The 1857 provisions are in reality unchanged. The apportionment of areas between the permitted gear classes drift nets, longlines, pole-lines and Danish seines is carried out by a committee of representatives of the different gear class groups. The representatives are elected by fishermen. The Directorate of Fisheries supervises compliance with regulations decided by the fishermen themselves. The Coastguard also assists in this supervision. Source: Store norske leksikon (Kunnskapsforlaget) 1997 (Norwegian language encyclopaedia 1997), and the Directorate of Fisheries, Nordland region Surveillance activities of Sea Patrol Service North The inspection statistics of the Directorate of Fisheries show that Sea Patrol Service North carried out just over 600 inspections in Approximately 460 of these were targeted at vessels and landings while 160 were targeted at shore facilities. One region reported when interviewed that the resources of the service can be reassigned to inspection of shore facilities when there are few fishing activities along the coast. Another region pointed out that the two vessels of Sea Patrol Service North are not dimensioned for conditions in northern Norway and that there is therefore a greater focus on ordinary landing inspections during large parts of the year. The Sea Patrol Services inspections of landings of fish and fish landing facilities mean that the inspection coverage in individual regions will be somewhat higher than indicated in Table 11 and 14. Figures from the Troms region show that Sea Patrol Service North conducted 141 full inspections and four document checks of landings of cod in Just over 1000 tonnes of cod were inspected in the full inspections while over 25 tonnes were inspected via document checks. The Directorate of Fisheries Sea Patrol Service and the Coastguard (Internal Waters) can operate in the same coastal areas in their surveillance work. Coastguard Squadron North reported when interviewed that there is no absolute boundary between the responsibility of the Coastguard and of the Directorate of Fisheries in inspection activities. 268 The staff of Sea Patrol Service South with responsibility for the task stated that they receive sailing schedules from the Coastguard (Internal Waters) to permit coordination of the inspection work. The administration office for the vessels of Sea Patrol Service North reported that they did not exchange sailing schedules with the Coastguard but that the vessels maintain contact at sea in order to avoid unnecessary overlapping of activities in the execution of their duties. 267 Prior to 2005, inspection statistics for seagoing inspections were distributed among the individual regional offices. 268 Cf. section 6.6 on the Coastguard s surveillance activities for a description of the Coastguard (Internal Waters). 114

119 The Fishing Grounds Surveillance Service The Fishing Grounds Surveillance Service is subordinate to the Troms regional office. Its main task is to gather information about the intermixture of undersized fish in catches to provide a basis for the opening and closing of fishing grounds. In order to carry out this work, the twenty or so inspectors are placed on board hired fishing vessels. 269 These hired vessels are used at times when the need for surveillance is greatest. On the basis of samples taken 270 the inspectors send data from the fishing grounds continuously to the regional office of the Directorate of Fisheries in Tromsø. If the percentage of undersized fish in an area is too great, the directorate will close the fishing ground in question. After a period of time the inspectors will take fresh samples in the closed area to determine whether the area should be opened or remain closed until the next sampling. The Coastguard will conduct surveillance and enforce the closure, helped by both Coastguard vessels and Orion planes. According to the surveillance service, the Coastguard also plays an important role in gathering data on fishing operations. According to representatives of the Troms region, notice of the formal closure of fishing grounds must be communicated to other countries via diplomatic channels. Experience shows that Norwegian and Russian vessels as well as vessels from third countries will leave a closed area as soon as notice on closure is broadcast over the radio by the Norwegian Broadcasting Corporation. According to representatives of the surveillance service, the general opinion among fishermen is that it is sensible to close fishing grounds if this is considered necessary. When the surveillance service was established in 1984 there was initially a good deal of resistance but this has changed. A number of fishermen have appealed against decisions on closure of fishing grounds but the decisions have not been reversed on this account. The basic criteria for closure of a fishing ground have been compiled jointly with the Russian authorities. At present the surveillance service only records a limited amount of statistics on resource control. Some inspectors accompany vessels on fishing operations and focus on whether fisheries provisions are observed, but at present the surveillance service does not carry out active surveillance to the same extent as previously. Earlier the service was required to divide its activities between management and surveillance in a ratio of 75 to 25 per cent. The service now focuses on maintaining a preventive presence to monitor the situation with respect to undersized fish Detected violations of the regulations Detection rate In addition to preventing contraventions, the inspection work of the regional offices shall also reveal any violations of the regulations that they administer. For example, a central part of this work is to detect attempts to evade the registration of catch. Deficient registration often means that a larger catch has been taken than the quota allocated to the vessel. Table The fish catch obtained during work for the surveillance service is the price paid to fishing vessels for the rent of the vessel. The surveillance service has a total quota of 4500 tonnes, of which approximately 70 per cent is cod and approximately 30 per cent consists of other species of demersal fish. 270 According to the Directorate of Fisheries, almost 2600 hauls/inspections were carried out in

120 shows the extent to which inspections by regional offices have revealed violations of the regulations. Table 17 Proportion of contraventions detected proportion of detections for the inspections conducted by each of the selected regions grouped as warnings and reports, and totals for these regions in Per cent Reaction/Region Finnmark Troms Nordland Trøndelag Møre og Romsdal Total Warnings Reports All contraventions Source: statistics compiled by the Directorate of Fisheries and the five regional offices The table shows that the average detection rate for the selected regions was 5.5 per cent in This is somewhat lower than the detection rate for all regions in the same period, cf. Table 10. The table also shows that the average detection rate varied between 2.7 per cent in Finnmark and 11 per cent in Møre og Romsdal in The table differentiates between the percentage of contraventions resulting in a warning and those resulting in a report, respectively. In just over 4 per cent of the inspections a warning was given while 1.4 per cent of the inspections resulted in the filing of a report about the object inspected. The table reveals that there is less variation among the regions in the percentage of serious contraventions than in the percentage of contraventions that resulted in a warning. Approximately 70 per cent of all contraventions that were detected in the selected regions are related to incorrect registration in the catch logbook. All Norwegian vessels over 13 metres are required to keep a catch logbook. Most vessels under 21 metres can keep a simplified catch logbook. The basic principle of keeping a catch logbook is that the quantity of catch must be estimated on an ongoing basis and that all catch must be entered before the fish is landed. 271 In cases where the inspection reveals too large a discrepancy between the catch logbook and the quantity registered in the obligatory reporting documents on landing/the physical quantity, the reaction may be a warning or a report. The discrepancy between the catch logbook and the actual quantity will not automatically indicate that attempts have been made to avoid registering fish. One region reported when interviewed that it may prove difficult for a fisherman to estimate the quantity of fish correctly. As a result some fishermen may unintentionally have entered data in the catch logbook in a manner that did not comply with the regulations, and have nevertheless been subject to sanctions. On the other hand the region in question reported that the catch logbook is an essential document in resource control. Some fishermen may deliberately enter a lower quantity in the catch logbook than that which has actually been fished, and may deliver a higher quantity to a buyer than that registered on the landing declaration or sales note. The fisherman will be compensated by a high price per kilo for what is registered on the document and will have a higher remaining quota relative to the actual quantity fished. 271 Cf. regulations on reporting obligations for fishing and hunting vessels, section 3 (J ), 29 June

121 In the questionnaire survey conducted among 103 fishermen, a number of the respondents pointed out that it can be difficult to estimate the catch with complete accuracy and that the regional inspectors do not always seem to understand this. Illegal use of gear and deficiencies in completing documents in connection with the buying and selling of fish each constituted just over 10 per cent of the contraventions. Another fairly common contravention was illegal by-catch. This means that the intermixture of fish that was not directly being fished is higher than the amount permitted by the by-catch provisions. The majority of these cases lead to confiscation of catch value pursuant to Section 11 of the Sea- Water Fisheries Act, and will not normally be the subject of a warning or a report. The Directorate of Fisheries stated when interviewed that the variation in the detection rate between the regions may have different causes. In the opinion of the directorate, the Møre og Romsdal regional office makes extensive use of risk analysis in its inspection work, and it is natural that this will lead to a higher detection rate. In recent years, the Finnmark region has focused on the analysis of Russian fishing operations in the Barents Sea, partly at the expense of ordinary resource control and the development of a system for risk analysis. 272 Another reason that the region has a lower detection rate than many other regions is that many random inspections of small vessels have been carried out. 273 In addition, the directorate pointed out that there are variations between the regions with regard to landing patterns and this results in differences in inspection focus. For example, in the northernmost regions there is a large number of small vessels and it is therefore natural to carry out more inspections of individual landings. According to the directorate, these inspections will primarily have a preventive effect. As part of the audit, a review of almost 100 random landing inspections (full inspections only) in the selected regions was carried out. This review shows that the relative amount of discrepancy between the catch logbook and the actual quantity of fish can be up to 40 times higher in one region than another without any formal reaction. 274 All the selected regions reported that there are straightforward and clear guidelines as to how contraventions of the regulations are to be followed up, but that judgment must also be exercised in the individual case. 275 The directorate stated that procedures in the different regions should be uniform. On the other hand there are differences between the regions that make full harmonisation inappropriate. The directorate indicated that regional inspection efforts will be monitored more closely by means of the improved inspection database and risk analyses. Detection rate grouped according to type of inspection Approximately 70 per cent of all inspections were either document checks or full inspections in The directorate s inspection statistics show that the total detection rate for full inspections was over 8 per cent while the detection rate for document checks was just under 272 The Finnmark regional office reported when interviewed that the region had prioritised the analysis of documents collected from Russian vessels and the regional office intended to increase efforts to analyse the objects of Norwegian inspections in the future. 273 Interview with the Finnmark regional office, 14 November With approximately the same catch quantity. 275 Cf. section on the quality of inspection activities by the Directorate of Fisheries follow-up work when contraventions of the regulations are detected. 117

122 4 per cent. Thus full inspections reveal contraventions of the regulations in double the number of cases as document checks. As previously mentioned, the Directorate of Fisheries has laid down provisions that the regions must give less priority to document checks in favour of follow-up inspections, for example sales inspections. Sales inspections also had a high detection rate of over 6 per cent in compared with other types of inspections. However, the detection rate varies from region to region. Some regions have not detected contraventions of the regulations by means of sales inspections. Detection rates distributed by length of fishing vessel Figure 3 shows how contraventions of the regulations that were detected in connection with Norwegian fishing vessels were distributed among the various length categories in Figure 3 Detections distributed among the length categories for Norwegian vessels in Per cent 10 % 8 % 7.8 % 7.5 % 6 % 5.5 % 4 % 2 % 0 % 1.9 % 2.1 % < 10 m 10-15< m 15-21< m 21-28< m Deep-sea fishing vessels Detection rate Source: Statistics compiled by the Directorate of Fisheries and the five regional offices Figure 3 illustrates that in the case of inspections targeted at fishing vessels the largest number of contraventions were detected in inspections of the largest fishing vessels. Fewest contraventions of the regulations were detected in inspections of the smallest vessels under 15 metres. As mentioned above, deficient keeping of the catch logbook is the infringement most often detected in the inspections. Vessels less than 13 metres are exempted from keeping a catch logbook. Therefore the inspection base for the smallest vessels is less comprehensive. Violations of the regulations by foreign vessels As mentioned earlier, two violations of Norwegian regulations by Russian vessels are registered in the Ministry of Fisheries inspection database in Reference is made in this connection to the ministry s analysis of Russian fishing operations in the Barents Sea which is targeted at the compliance of Russian vessels with Russian regulations, with particular reference to quotas. In the same period, less than ten infringements of Norwegian regulations by third-country vessels were detected. This means that the detection rate in these inspections was just under 3 per cent in

123 Detection rate in inspections of cod Table 18 shows the extent to which inspections targeted at cod have revealed violations of the regulations. Table 18 Percentage of contraventions detected detection rate for inspections of cod for each of the selected regions and in all for these regions in Per cent Reaction/Region Finnmark Troms Nordland Trøndelag Møre og Total Romsdal Warnings Report Total Source: Statistics and inspection reports compiled by the Directorate of Fisheries and the five regional offices The table shows that violations of the regulations were detected in 4.5 per cent of all inspections of cod. All contraventions applied to Norwegian vessels or shore facilities. The total detection rate for inspections of cod is somewhat lower than the detection rate for all inspections conducted (cf. Table 10). 276 In addition, the table reveals that in the case of inspections that included cod, the detection rate varies from region to region. In line with all inspections conducted, the detection rate was highest in Møre og Romsdal with a total detection rate of approximately 7.4 per cent. In the other regions it varied between 3 per cent and 4.7 per cent Almost 70 per cent of the contraventions detected in inspections that included cod related to missing or deficient registration of catches in the catch logbook. A review of all inspection cases relating to cod shows that in over 80 per cent of cases where a discrepancy was registered between the quantity delivered and the quantity recorded in the catch logbook, the quantity recorded in the catch logbook was too low. The discrepancies varied from 50 kilos up to kilos. In cases where the quantity recorded was too high in comparison with the quantity delivered, the discrepancies varied from just under 100 kilos to almost kilos. The second largest group of contraventions related to incorrectly completed or missing sales notes. In cases where a discrepancy was detected between the actual quantity and the quantity recorded on the sales note, the figure was generally too low. The discrepancies varied from 50 kilos to kilos. On average the sales notes registered 7000 kilos of cod less than the amount delivered Use of resources and the quality of the Directorate of Fisheries inspections Use of resources At each of the Directorate of Fisheries seven subordinate regional offices there is a Control Section that has responsibility for planning and implementing inspection work in the individual region. Each section has a section leader in addition to a number of inspectors and executive officers. According to figures from the directorate, the inspections are carried out by altogether 56 inspectors in the seven fisheries regions. On the basis of the annual number of inspections conducted nationwide, each inspector carries out approximately 100 inspections per year. 276 This also applies if inspections of Russian vessels are excluded. 119

124 In addition to conducting inspections, the inspectors must spend time acquiring information prior to an inspection and must also carry out follow-up work and case processing. The inspection work may also entail a considerable amount of travelling. Executive officers in the Control Sections process inspection cases. According to figures from the directorate, approximately ten man-years are used for case-processing tasks in respect of resource control work in the seven regions. Table 19 shows the total number of man-years, the total number of inspector man-years and the percentage of inspector man-years in the selected regions, based on information supplied by the regions when interviewed. 277 Table 19 Total number of man-years, number of inspector man-years and percentage of inspector manyears in the selected region and overall Resource/Region Finnmark Troms Nordland Trøndelag Møre og Romsdal Total Total number of manyears Total number of inspectors man-years Percentage of inspector man-years 39% 17% 31% 11.5% 24% 25% Source: Interview/telephone interview with the respective regions The table shows that there is variation from region to region in the number of inspectors and the percentage of inspectors in relation to the total number of employees. In Trøndelag 11.5 per cent of the staff are inspectors while the corresponding figure for Finnmark is almost 40 per cent. The number of inspectors in the individual region may vary over time. Figure 4 shows the percentage of inspectors in relation to the total amount of fish landed and the total number of landings per region, respectively, according to figures for The green columns indicate the quantity of fish delivered in the individual region in relation to the number of inspectors (the columns should be read against the primary axis on the left). The solid line shows the number of landings per inspector in the individual region (should be read against the secondary axis on the right). 277 Telephone interview with the Trøndelag region. 120

125 Figure 4 Distribution of inspectors: quantity of fish landed and number of landings distributed over the number of inspectors in the individual region Finnmark Troms NordlandTrøndelagMøre og Romsdal Quantity landed per inspector Number of landings per inspector Source: Derived from statistics compiled by the Directorate of Fisheries and the five regional offices Figure 4 shows that there is some variation in the number of inspectors in the individual region compared with the quantity of fish landed and the number of landings. The figures show for instance that the individual inspector in the Møre og Romsdal region has an inspection span four times greater than that in the Finnmark region in respect of the quantity of fish delivered. On the other hand the figure shows that the number of landings distributed over the number of inspectors varies from 2600 in Møre og Romsdal to over 8700 in the Trøndelag. This means that far fewer landings are carried out in the Møre og Romsdal region than in the other regions, but that the average landing in this region contains a larger quantity of fish. In the view of the Directorate of Fisheries there is some imbalance in the distribution of resources among the regions. 278 A committee has been appointed in the directorate to conduct a continuous assessment of the staffing situation in the regions. The criteria on which the allocation of control resources is based include the number of landings, the quantity of fish landed, the number of shore facilities and landing facilities i.e. all the factors that can express the extent of the activities that the individual region is responsible for checking. The directorate stated when interviewed that the committee conducted a comprehensive review of the resource situation in the regions in the autumn of The committee will put forward recommendations several changes in the winter of However, only minor adjustments will be made to the allocation of control resources. According to the directorate, part of the imbalance in the allocation of resources is the result of various reorganisations in the recent past. 279 These organisational changes have resulted in the distribution of inspection resources not always being keyed to needs. 278 Interview with the Directorate of Fisheries, 11 December Interview with the Directorate of Fisheries, 11 December 2006; Document no. 3:11 ( ) Riksrevisjonens undersøkelse av omorganiseringer som forvaltningspolitisk virkemiddel [The Office of the Auditor General s investigation of reorganisation processes as a policy tool in central government administration]. 121

126 Resources and analysis of Russian fishing operations in the Barents Sea Table 19 showed that the Finnmark region has a higher percentage of inspectors in relation to the total number of man-years than the other regions. As previously mentioned, the Finnmark region has special responsibility for analysing all data on Russian landings both in Norway and abroad. This work is largely carried out by inspectors at the regional office. The Directorate of Fisheries requested the region to allocate two man-years when it was given responsibility for this work in The region stated that in practice almost four man-years have been allocated to this work. Representatives for the Finnmark region reported that altogether two of the inspectors and one executive officer work full-time on the analysis of the Russian fleet. In addition, regional management and other staff must be co-opted when needed. The view of the Finnmark region is that fewer resources are earmarked for work with Russian overfishing than the seriousness of the issue seems to call for. In addition to the Finnmark region, two officials from the directorate s Bergen office are involved in this work, as well as one fisheries officer from Coastguard Squadron North who works full-time on the analysis of Russian fishing operations. In the central government budget for 2006, the directorate was allocated NOK 15 million in supplementary funding that was earmarked for strengthening resource control, including international work. 280 The directorate stated that of overall 14 new positions created in connection with this, two of them target work on the analysis of Russian fishing operation in the Barents Sea in particular. In addition to the two inspectors in Vadsø, there is at present one inspector in Western Norway who works with the analysis of Russian overfishing Quality of the Directorate of Fisheries inspection work Inspection manual guidelines for conducting inspection work The Directorate of Fisheries has compiled a manual on which the regions must base their inspection work. According to the directorate, the manual is continuously updated and is also available on the agency s intranet for the officials who work in the field of resource control. The manual s introductory chapters describe and define the various kinds of inspections that the regions carry out as part of their enforcement work. It also provides guidance in operational risk analysis associated with individual subjects or a group of inspection subjects. The object of assessing inspection subjects prior to an inspection is to ensure a more precise selection of subjects for inspection in cases where it is anticipated that contraventions of the regulations may be found. Later chapters provide a description of how the various types of inspection are to be conducted in practice. The chapters reflect the main lines of the inspection work, including landing inspections and the follow-up inspections on land. There is also a chronological checklist of the activities that the inspector must carry out in the course of the various kinds of inspection. 280 Cf. Budget recommendation no. 8 to the Storting ( ). 122

127 All the selected regions reported that their inspection work is based on the manual, which is perceived as useful. However, it was pointed out that the manual is not completely comprehensive or updated in all areas. The directorate shares the view of the regions, but also stresses that it is important that the regions give input on updates on an ongoing basis. 281 Qualifications of the inspectors According to the Directorate of Fisheries and the selected regions, the inspectors who actually carry out the inspections have a variety of educational backgrounds. Those with long experience have a background in the food industry etc. Those who have been appointed in recent years usually have a more theoretical education, for example in maritime studies, while others have studied at schools offering fisheries studies. In addition, there has been an increase in the number of inspectors who have experience from the fishing industry, for example fishermen and fisheries specialists. The directorate stated that all newly appointed inspectors must take a three-week course on inspection work arranged by the directorate. Seminars to upgrade skills etc. are held periodically for inspectors, both centrally and in the individual regions. However, according to the directorate, key course activities have not been designed in a sufficiently systematic manner. Through the supplementary budget allocation of NOK 15 million to the 2006 budget 282 the directorate created a position intended to strengthen internal training in the agency. The directorate wishes to hold specialist courses that will ensure increased specialist knowledge among inspectors. For example, this will apply to specialist courses in accounting or in weight systems and other technical equipment. Accounting skills can be of central importance in sales inspections. Online courses will also be developed in order to reduce the number of seminars and the related travel and subsistence costs of the agency. According to the directorate, courses and continuing education will be held on an ongoing basis and in a more systematic manner in the future. In the long term the directorate wishes to develop a training system within the agency that will lead to a specific qualification for inspectors. The directorate reported that in each region an experienced inspector has special responsibility for following up new inspectors, and that courses in guidance are arranged for the inspectors responsible for this follow-up. Three of the regions interviewed stated that one of the inspectors follows up and gives guidance to new inspectors, while one of the regions reported that the region did not have an inspector with this responsibility. Fishermen s view of the Directorate of Fisheries inspection work In the questionnaire survey among 103 active full-time fishermen, those who had experienced inspections carried out by officials from the directorate s regional offices 283 were asked whether in their view there had been deficiencies in one or more of the inspections. Of the 65 fishermen (63 per cent) who had experienced inspections by the directorate, 60 (92.3 per cent) answered that they felt that these inspections had been thorough. On the whole, the respondents were of the opinion that the inspections carried out by the directorate s officials are acceptable. Of the five who answered that the inspections were deficient, four pointed out that the inspectors had not inspected the gear. However, it is not routine practice that gear is always included in the inspections conducted. 281 Interview with the Directorate of Fisheries, 11 December Proposition no. 1 to the Storting ( ), Supplement no. 1; Budget recommendation no. 8 to the Storting ( ). 283 Referred to as control body after the previous reorganisation before 1998, with reference to the Directorate of Fisheries. 123

128 The fishermen were also asked in the questionnaire survey to give their opinion about whether the directorate s inspectors generally have sufficient knowledge to carry out good landing inspections. Of the 65 fishermen who had experienced inspections, approximately 74 per cent answered that they completely or partly agreed that the inspectors had sufficient knowledge to conduct effective inspections. Almost 17 per cent replied that they completely or partly disagreed with this statement and 8 per cent of these answered that they completely disagreed. Just over 9 per cent did not give an opinion. In addition, the fishermen in the survey were asked to give their view on whether the directorate s inspectors are thorough when conducting an inspection. Of the 65 fishermen who had experienced inspections, almost 94 per cent answered that they completely or partly agreed with this statement. Some of the fishermen have given written comments on the inspectors knowledge and the thoroughness of their inspections. They indicate that the knowledge of the inspectors varies. For example, it is claimed that some of the inspectors have inadequate knowledge and experience, and that they may appear inflexible and theoretical in their approach to inspections. Some also comment that inexperienced inspectors can be tricked by fishermen during an inspection. Documentation of an inspection and follow-up work Documentation of inspection work All inspections must be documented on a standardised inspection form which is available in two versions. 284 Inspection form 1 is used when inspecting vessels that keep a catch logbook or a simplified catch logbook. On this form the inspector must register the quantity entered in the catch logbook and the quantity entered on the landing declaration or the sales note for each species of fish. If there is a physical inspection of the catch, the quantity inspected must also be entered on the form. Thus any discrepancies between the catch logbook, the landing declaration/sales note and/or the actual physical quantity of catch will appear on the inspection form. In addition, the vessel inspected is identified by name, registration marking and call signal if any. Inspection form 2 is used in inspections targeted at vessels that are not obliged to keep a catch logbook (i.e. vessels under 13 metres). In addition, other inspections such as storage facility and sales inspections must be recorded on this form. Storage facility and sales inspections must also be documented through separate reports. The information given on the individual inspection form must be registered in an electronic inspection database. Inspection statistics for the regional inspection work are available back to However, according to the directorate the statistics are not comparable over time. 285 For instance definitions and interpretations of different kinds of inspections have not been uniform. A new inspection database for the agency was taken into use from All the regions registered inspection data in this database up to the autumn of The registration practice in this inspection database is discussed in the section on inspections of individual landings of cod. 284 Inspections at sea are documented by means of a third version of the inspection form. 285 Meetings with the Directorate of Fisheries, 13 and 14 March

129 In the autumn of 2005, a new inspection database was introduced that is shared with the Coastguard. In it the regions register more data about what has been inspected, including all species and quantities inspected. Quantities checked via sales and storage facility inspections will not appear in the database. These are registered on an Excel form for the individual inspection. There is also a tab in the inspection database where inspection data from sales inspections can be entered. According to the directorate, it will be possible to follow-up inspection work in the regions in a more satisfactory way when this inspection database is fully operational. Follow-up work when contraventions of the regulations are detected When an inspection does not reveal contraventions of the regulations, the inspection form documents the inspection conducted. In cases where contraventions are detected that may give grounds for sanctions, the inspector must write an inspection report containing information about the inspection he conducted. The inspection form and any other documentation, for example sales notes, are attached to the inspection report. The acts and regulations with which the inspectors shall verify compliance are specified in a manual containing enforcement guidelines for the Coastguard and the Directorate of Fisheries. This manual sets out guidelines for the limits applying for when sanctions should be imposed for various contraventions. According to the selected regions, the inspectors do not have direct access to this manual. However, the inspectors, and experienced inspectors in particular, have thorough knowledge of the contents of the manual and will be able to give a preliminary assessment of whether there has been a violation of the regulations and what reaction, if any, this should be met with. Executive officers at the individual regional office decide whether an inspection has revealed violations of the regulations that call for a legal sanction. The decision is based on the inspection form and also the inspection report and other relevant documentation, if applicable. These executive officers have access to the enforcement guidelines. The interviewed regions reported that the executive officer can also confer with the inspectors regarding the decision. It was also mentioned that the executive officer and the inspector do not always agree as to the outcome of an inspection but that this not very common. Two of the regions mentioned that if there is disagreement, the executive officer will generally recommend a more severe reaction than the inspector. Further to this, one of the regions mentioned as an example that an inspector will take mitigating circumstances into account to a far greater extent when assessing the form of reaction. All the selected regions pointed out that executive officers must exercise judgement in the individual inspection case. They state that the enforcement manual sets out clear limits as to the type of case and the seriousness of the regulatory violation that must be met by either a warning or a report to the police. However, when it comes to other deciding factors on which the decision is to be based, there are no clearly defined limits. The regions report that the demand for equal treatment carries weight and that efforts are being made to coordinate practice in the regions and via the directorate. In the three northernmost regions a resource control group has been established for northern Norway, of which Coastguard Squadron North, the Norwegian Fishermen s Sales Organisation and the Norwegian Fishermen s Sales Organisation for Pelagic Fish are also members. A central topic that is discussed in this group is the application of guidelines and the decisions that are reached in inspections that have revealed violations of the regulations. However, one of the regions stated that a number of examples have shown that the practice in different regions has not been uniform. This region has experienced, for example, that documentation has been submitted during court 125

130 cases to show that regions have differing practices and that this may lead to discrimination (cf. also chapter on detection rate). Appeals against decisions to issue a warning One factor that can indicate whether the inspections are of satisfactory quality is the extent and in particular the outcome of appeals against decisions to issue a warning (a report to the police cannot be appealed). Warnings issued by the regions when an inspection reveals minor contraventions of the regulations are not defined as an administrative decision with the right to appeal pursuant to the Public Administration Act. However, in practice the directorate has allowed appeal in such cases since The appeal must be addressed to the body that initially took the decision to issue a warning in this connection this will mean the regional office that issued the warning. All the regions interviewed stated that they received few appeals against the warnings issued. One of the regions said that of a total of 31 warnings issued by the regional office in , four had been appealed. The regions reported that few of the appeals that are received result in a reversal of the administrative decision. Furthermore, two of the regions reported that in cases in which the administrative decision to issue a warning was reversed, this was generally because new information had emerged that had significance for the outcome of the individual case. In cases in which the regions uphold the original decision and allow the warnings to stand, the appeal is sent to the directorate for a new hearing. The directorate stated when interviewed that few appeal cases against administrative decisions on warnings are received from the regions. The directorate dealt with three such appeals in 2006, two of which were allowed to stand and one which was reversed. The directorate is also the appeals body for decisions made by the regions on confiscations pursuant to Section 11 of the Sea-Water Fisheries Act. According to its figures, the directorate dealt with 10 such appeals from the regions in The administrative decisions in three of these cases were reversed. The corresponding figures for 2005 were three appeals against administrative decisions pursuant to Section 11 of the Act, and one of these decisions was reversed. One of the regions stated that in recent years two out of three of the appeals received against confiscation decision pursuant to Section 11 of the Act had resulted in a reversal of the administrative decision by the directorate. However, the reversal of the decision was due to the directorate s lengthy case-processing and not to material changes. View of the police on reports from the regions In cases where a report is filed, the performance of the inspections and documentation of the individual inspection case will be a key point of departure for the work of the police and the prosecuting authorities. In the second questionnaire survey targeted at the ten northernmost police districts 286, six answered that they completely or partly agreed that the directorate s reports were well documented. Three of the police districts replied that they partly disagreed with this statement. 287 In the same survey the question was asked whether the Coastguard s reports were well documented. Eight of the police districts completely or partly agreed with this statement. No district disagreed Cf. chapter on methodology and Chapter 7, Topic 4: Sanctions for violations of acts and regulations relating to the use of living marine resources in Norway. 287 One police district neither agreed nor disagreed. 288 Cf. also Chapter 7 for further details in connection with reports. 126

131 6.6 The Coastguard s surveillance activities (inspection at sea) General description of the Coastguard s activities The most important tasks of the Coastguard in peacetime are to assert Norwegian sovereignty in Norwegian territorial waters and sovereign rights in ocean waters under Norwegian jurisdiction. This entails comprehensive surveillance and monitoring in order to safeguard Norway s rights and duties in the management of resources and the environment. 289 It is also important to stress that the Coastguard has a number of responsibilities in addition to resource control. 290 The Coastguard forms part of Norway s military defence system. In peacetime the Coastguard shall, to the extent possible, carry out the duties ascribed to it in the Act relating to the Coastguard as well as exercises to prepare for wartime assignments. Operationally the Coastguard is under the command of the National Joint Headquarters in Stavanger (southern Norway) and Regional Command Northern Norway in Bodø. Functional and administrative leadership is exercised by Coastguard Staff in Oslo who are responsible for the operations of the two Coastguard squadrons. These are Coastguard Squadron North (CSN) based at Sortland and Coastguard Squadron South based at Haakonsvern outside Bergen. The Coastguard is further divided into the Coastguard (Internal Waters) and the Coastguard (Territorial Sea), which patrol coastal areas and the high seas respectively. The Coastguard s activities are supported by maritime surveillance aircraft, hired civilian aircraft and satellite monitoring. The Coastguard carries out assignments for other public authorities, under their functional responsibility and leadership. The vessels remain under the military operational command of the appropriate defence command. 291 The Coastguard has a budget of NOK 816 million for 2007 and plans to have 16 vessels on patrol. Ten of the vessels are ocean-going vessels and six are intended to be used in coastal areas. 292 In recent years the Coastguard has devoted a considerable percentage of its budget to operational activities. For example, 92 per cent of the allocated funds were used on operational tasks in 2005 according to the Coastguard itself. 293 An important measurement of the Coastguard s output is the number of patrol days per year, since this figure is indicative of the level of activity. The term patrol day means that the vessels are fully manned and on patrol. Table 20 shows that there was a steady decrease in the number of patrol days in This is partly due to the phasing-out of so-called utility patrol vessels. 294 These were vessels with only civilian personnel on board whose main task was to prevent disputes between vessels, for example in the case of gear collisions on a fishing ground. 289 Proposition no. 1 to the Storting ( ) Ministry of Defence. 290 Examples are search and rescue, transport assignments for a number of central government agencies, towing assistance and monitoring compliance with the ship s port of call regulations in the case of foreign non-military vessels. 291 Section 7 of the Instructions relating to the Coastguard. 292 Proposition no. 1 to the Storting ( ) Ministry of Defence, p Coastguard s Annual Report Coastguard s Annual Report

132 Table 20 Number of patrol days and inspections annually Coastguard overall Coastguard (Territorial Sea) Coastguard (Internal Waters) Total patrol days Number of inspections Source: The Coastguard s annual report 2005 As shown in Table 20, the number of fisheries inspections remained stable at roughly 2400 inspections in Point of departure for resource control conducted by the Coastguard According to Proposition no. 1 to the Storting ( ), Norway s northern areas are strategic priority areas in the years ahead and the main goal is that the northern areas shall be characterised by security, stability and sustainable development. In respect of the management of resources and resource control, the significance of maintaining the ability to react adequately and predictably to contraventions in areas under Norwegian jurisdiction is stressed. Similarly, Proposition no. 1 to the Storting ( ) Ministry of Defence specifies that appropriate resource control is a central policy goal for the Coastguard. In addition to the prerequisites on resource control by the Coastguard laid down by the Storting in the budget proceedings, the Coastguard s duties in peacetime are regulated by the Coastguard Act of Section 9 of the Act, which deals with fisheries surveillance, catch monitoring and resource control etc. is of particular relevance in relation to the management of fisheries resources. This section authorises the Coastguard to monitor compliance with a number of acts relating to resource exploitation, such as the Act relating to the economic zone of Norway and the Sea-Water Fisheries Act. When it comes to inspection and enforcement measures in connection with fisheries, the Coastguard s officials have policing authority, although this is limited to the Coastguard Act and the acts named in Section 9 of the Coastguard Act. The Coastguard may also carry out investigations on suspicion of contraventions. The Instructions relating to the Coastguard 296 have been laid down with legal basis in the Coastguard Act, and these define more precisely the Coastguard s responsibilities and authority and its relationship to other government bodies. There is little direct mention of resource control in these instructions. The exception is Section 11 on the exercise of police authority, which stipulates, for example, that the Coastguard shall exercise its statutory limited police authority in conformity with general instructions and guidelines on police policy where these are applicable. Finally it is important to mention that in 1994 a scheme was introduced north of the 62 nd parallel whereby foreign fishing vessels are to report to the Coastguard for inspection at one of seven control points when discontinuing fishing activities in the Norwegian Economic Zone. This means in practice that the vessels must send notice that they will be reporting for inspection (control point notification) twelve hours before they arrive at the control point. The scheme was introduced primarily to ensure improved monitoring of the catches in the 295 The Coastguard Act (LOV no. 42). 296 FOR no. 1145: Instructions relating to the Coastguard. 128

133 Norwegian Economic Zone north of the 62 nd parallel, and secondly because it was known that quota evasion by foreign vessels took place in this area. 297 This scheme also applies to fishing operations in territorial waters around Svalbard 298 but does not include the Fisheries Protection Zone around Svalbard (Fisheries Protection Zone) Resource control of cod As mentioned above, there has been special focus on the activities of Coastguard Squadron North (CSN), since this squadron has responsibility for surveillance of cod fishing operations north of the 65 th parallel. Table 21 shows the total number of patrol days and the number of inspections for CSN in The number of inspections remained stable at around 1400 in 2005 despite fewer available vessels and a somewhat lower number of patrol days per vessel in 2005 than in This also means that the number of inspections per vessel increased in this period. Table 21 The number of patrol days and inspections for Coastguard Squadron North Number of vessels Number of patrol days Number of patrol days per vessel (average) Number of inspections Number of inspections per vessel (average) Source: The annual reports of Coastguard Squadron North In the case of cod alone, CSN carried out 1914 inspections of vessels taking part in cod fisheries in There was also an increase in this period from 553 inspections in 2003 to 683 inspections in 2005, despite the fact that the number of patrol days during the period was at its lowest in In addition, Table 22 shows the distribution of the inspections between Norwegian, Russian and third-country vessels. Table 22 Number of inspections of Norwegian, Russian and third-country vessels that fished cod conducted by Coastguard Squadron North in Norwegian vessels Third-country vessels Russian vessels Total Total Source: The Coastguard s inspection database As shown, the number of inspections of Russian fishing vessels was almost double the figure for Norwegian vessels. However, when examining differences between inspections of 297 Report no. 22 to the Storting ( ) Om dei fiskeriavtalane Noreg har inngått med andre land for 2006 og fisket etter avtalane i 2004) og 2005, Chapter 5 [Fishery agreements Norway has entered into with other countries for 2006, and fishing operations under the agreements of 2004 and 2005]. See also FOR : Regulations on the duty of foreign vessels conducting fishing and hunting operations in the Norwegian Economic Zone north of 62 o N to report for inspection. 298 See FOR : Regulations for reporting and inspections etc. in connection with fishing operations in territorial waters around Svalbard. 129

134 Norwegian, Russian and third-country vessels, it must also be taken into account that there is a variation in the number of vessels fishing actively. This is discussed in greater depth in the sub-section on coverage rate below. The types of vessel inspected are also of interest. Table 23 provides such an overview, based on the gear used. Consequently it is clear that most inspections conducted (72 per cent) are of trawlers using a bottom trawl when fishing for cod. Table 23 Coastguard Squadron North s inspections of cod fishing operations , distributed according to gear class Gear class Total Other longlines Hook fishing Floating trawl Undefined fish-trap Undefined seine Undefined gill net Purse seine Undefined trawl (Set net) Gill net Other Danish seine/roundfish trawl/flatfish trawl Bottom trawl pair Autoline Bottom trawl Total Source: The Coastguard s inspection database Coverage rate An interesting aspect of the inspection of cod fisheries is the percentage of inspections carried out on Norwegian, Russian and third-country vessels respectively in other words the number of vessels that fished cod and the number inspected. This provides the figure for the coverage rate. In the present context, the coverage rate for Norwegian vessels is limited to those with a trawling concession north of 62 N. The advantage of this is that the vessel groups for Norwegian and foreign vessels are more or less comparable, since the majority of foreign vessels are trawlers. The result for Norwegian vessels is shown in Table

135 Table 24 Coastguard s inspection coverage rate for Norwegian vessels with a trawler concession north of 62 N Number of Norwegian vessels with a trawling concession for cod north of 62ºN Number inspected Number of vessels inspected 1 3 times Number of vessels inspected more than 3 times Number of vessels not inspected Coverage rate (% of inspections of all vessels) Source: Directorate of Fisheries Vessel Register combined with data from the Coastguard s inspections database The table reveals that the coverage rate for Norwegian vessels fell somewhat from 2004 to The point of departure for calculating the coverage rate for Russian and third-country vessels is information on catch reported by these vessels to the Directorate of Fisheries. Catches of cod fished north of the 62 nd parallel were reported by 213, 172 and 191 foreign vessels in the years 2003, 2004 and 2005, respectively. This is the number of vessels that the Coastguard was able to inspect. A number of vessels also reported very small catches, most typically less than 1 tonne. These are vessels that fished other species and reported cod as a by-catch. If these are excluded from the analysis, 139, 151 and 157 vessels, respectively, remain. The coverage rate for Russian vessels is as follows: Table 25 Coastguard s inspection coverage rate for Russian vessels Number of Russian vessels that fished > 1 tonne of cod Number of Russian vessels inspected Number of Russian vessels inspected 1 3 times Number of Russian vessels inspected more than 3 times Number of Russian vessels not inspected Coverage rate (percentage of Russian vessels inspected) Source: Directorate of Fisheries database for catches reported by foreign vessels Thus the coverage rate for inspection of Russian vessels was high and it increased during the three-year period of the investigation. The coverage rate for third-country vessels is summarised in Table The figures in Table 24 on the inspection coverage rate have been verified by the Coastguard. However, after the report was completed the Directorate of Fisheries reported that the correct number of vessels that had fished cod in 2005 was 53. If this figure is used as a basis, the coverage rate for 2005 would be 98.1 per cent. 131

136 Table 26 Coastguard s inspection coverage rate for third-country vessels Number of third-country vessels that fished > 1 tonne of cod Number of third-country vessels inspected Number of third-country vessels inspected 1 3 times Number of third-country vessels inspected more than 3 times Number of third-country vessels not inspected Coverage rate (percentage of third-country vessels inspected) As shown, the coverage rate for third-country vessels was over 90 per cent for the entire period. When figures for the coverage rate for Norwegian, Russian and third-country vessels that fished cod are compared, the rate is apparently considerably higher for the two last categories. The explanation for this is that most Norwegian vessels that have a quota for cod north of the 62 nd parallel land their catch in Norway. 300 Thus they are also subject to the Norwegian landing inspection regime Offences detected The detection rate is a useful though imprecise indicator of how effective inspections are in detecting irregularities and illegalities. The detection rate is the percentage of inspections that have led to a reaction. Furthermore, if the extent of unregulated/illegal activity is assumed to remain constant 301, an increase in the detection rate will indicate that the inspection has become more effective or that the enforcement of regulations has become stricter. The number of offences detected and the detection rate for the three years covered in the report are given in Table 27. Table 27 Number of offences detected total for the Coastguard Total results Number of inspections Warnings Reported Arrested Total detection rate Source: The Coastguard s annual reports This shows that the detection rate for the three years is per cent. It is of equal interest to note that the number of more serious contraventions, i.e. those that lead either to a report to the police or arrest of the vessel, increased from 2003 to A considerable number of the warnings were given to Russian fishing vessels in the Fisheries Protection Zone. In 2005 this applied to 188 out of 309 warnings. According to CSN, the reason for this is that Russian vessels are ordered by the Russian authorities not to report their activities in the fisheries protection zone to the Norwegian authorities. The fact that so many of the offences detected pertain to the failure of Russian trawlers in the Fisheries Protection Zone to report also gives grounds for caution as regards the use of the detection rate as a measurement parameter. If fisheries activities in the Fisheries Protection Zone increase one year, the number of 300 Interview with the Directorate of Fisheries, 5 December In reality this is naturally an unrealistic assumption. Nevertheless, the detection rate is thought to be a useful, though imprecise, indicator. 132

137 warnings will also normally increase without this necessarily having any connection with the effectiveness of inspections Quality of the Coastguard s inspections The point of departure is that targeted and effective resource control is essential to ensure that the actual resource uptake is in conformity with Norway s obligations regarding the management of shared Norwegian-Russian cod stocks. Targeted and effective resource control entails channelling the control resources to the areas where the risk of violations of the regulations is greatest. The OAG pointed this out in Document 3:13 ( ) The Office of the Auditor General s study of the management of fish resources. 302 The Directorate of Fisheries, the Coastguard and the fishermen s sales organisations have subsequently followed this up, and in 2005 they carried out a joint national strategic risk assessment of resource control in fisheries. According to CSN, the increased focus on risk assessment has led in recent years to greater commitment to risk analysis. This work includes identifying areas that present a problem with respect to the goal of management of fisheries resources. These analyses are carried out in close cooperation with the Directorate of Fisheries. According to the Coastguard, the work on risk analysis has resulted in current inspections being more often targeted at vessels where it is anticipated that there is a risk of violations of the regulations. Previously, inspections were based to a greater extent on random selection of vessels on a particular fishing ground. 303 On a more operational level, CSN has prepared an intentions and policy document with the abbreviation SKVIP that is subsidiary to the national risk assessment. This document contains specifications of the priorities that should be made in resource control work and how inspections are to be conducted, and provides interpretations of the regulations. In addition, it sets out the analyses and operational assessments that should be conducted prior to the inspection of a fishing vessel. It should be noted that the document existed before the national general risk assessment was established. Thus CSN has had a system for operational risk assessment and prioritisation for a number of years, even though it has not been linked to a national strategy. A typical inspection Before the master of a Coastguard vessel decides to inspect a fishing vessel on a fishing ground, all available information on this fishing vessel will be reviewed by the Coastguard vessel. For instance a check will be carried out to establish whether the vessel has a licence and whether it has reported to the Norwegian fisheries authorities as required. The Coastguard vessel also has access to data on previous inspections as well as previously registered violations of the regulations by the vessel or the shipping company. 304 During an inspection on board a fishing vessel, the inspectors will first go through the catch logbook and other relevant documents. The catch logbook will be checked against quotas and in relation to what has been reported. The fishing vessel is boarded well before the next haul is brought on deck. When the catch is brought on deck, the gear will be inspected for example, a check of whether the trawl is correctly rigged will be carried out as well as an 302 Document no. 3:13 ( ). 303 Interview, Coastguard Squadron North, 16 August Interview, Coastguard Squadron North, 16 August

138 inspection of mesh size and round straps. Then the length of a certain number of fish will be measured, to check the in-mixing of small fish. An estimate of the amount of catch brought on board will also be made. Furthermore an inspection will normally include checking the cargo in the hold. Here an estimate of the amount of catch will be made and this will be checked against the catch entered in the catch logbook. When the catch in the hold is estimated, approved drawings of the vessel s hold are used. The inspectors will open and weigh a number of boxes, but a trawler is rapidly filled with catch and it is therefore impossible to inspect the innermost boxes without unloading the vessel. On factory ships the inspectors will also inspect the processing plant and the plant logbook and in addition check the presence of equipment or other factors to indicate that fish are being discarded. 305 Norwegian fishermen s views of the quality of the Coastguard s surveillance activities As mentioned in the section on methodology, an anonymous survey targeted at fishermen has been conducted. One of the aims of which was to acquire their views of the Coastguard s surveillance activities. Altogether 103 fishermen responded to the survey, 43 of whom had experienced inspection by the Coastguard in The underlying data are therefore somewhat limited. Similarly the fishermen, as interested parties, have an incentive to answer in a strategic manner. Despite these factors, there is good reason to believe that the survey provides an indication of the views held by fishermen. In general the fishermen who have experienced inspections have little fault to find with the quality of the Coastguard s inspections. For example, in answer to the question of whether they had experienced deficiencies in the Coastguard s inspections, 38 out of 43 who had undergone inspections in replied "No". Moreover, a large majority of the total number of participants in the survey agree that: The Coastguard s inspectors have sufficient knowledge when carrying out inspections (68 per cent of replies). The Coastguard s inspectors are thorough when carrying out inspections (80 per cent of replies). It is difficult to evade inspections by the Coastguard (69 per cent of replies). At the same time, 77 per cent of fishermen say that the Coastguard should carry out more inspections. Participants in the survey were also given the opportunity to write comments on quality in the questionnaire. Even though it is not possible to reach general conclusions on the basis of such comments, they provide useful illustrations. For example, several pointed out how important it is that inspectors act in an organised and professional manner during an inspection and do not appear to be unnecessarily bound by formalities. A number also mentioned that inspections by the Coastguard are time-consuming Circumstances that may limit the effectiveness of inspections Access to air support and helicopters Sufficient air and helicopter support is vital for effective resource control. CSN stresses that air surveillance is essential in areas where satellite tracking of fishing vessels is not generally 305 For example, it may be a matter of fish that are undersized in relation to settings on machines. Source: interview Coastguard Squadron North, 16 August

139 available, for example in the Barents Sea Loophole and the Norwegian Sea Loophole. Helicopter support is important because it provides an opportunity for surprise inspections. 306 As of 2007, CSN has three ocean-going vessels that in principle can carry helicopters. However, as far back as 1999 the possibility of using helicopters at sea has been greatly limited by problems in procuring a new airborne warning radar system on board the vessels. This has resulted in these vessels sailing for long periods of time without helicopters, and this is discussed in Document no. 3:16 ( ): The Office of the Auditor s investigation of defence equipment procurement projects in the Norwegian Armed Forces. Box 9 From Document no. 3:16 ( ) The Office of the Auditor General s investigation of defence equipment procurement projects in the Norwegian Armed Forces: The goal of the Coastguard projects was to strengthen the ocean-going Coastguard fleet with helicopters. However, the presence of ocean-going Coastguard vessels has been lower than targeted because of unwise investments in surveillance radar systems. In addition, the number of flying hours for operational Coastguard assignments has been reduced compared with the period before the procurement and installation of the new radar systems. For a period of five years, the Coastguard has therefore had a substantially reduced capacity to deal with tasks that require the use of a helicopter from ocean-going Coastguard vessels. In the investigation the question is raised of whether this has affected the ability of the Coastguard to assert a sovereign presence and to carry out resource control and environmental and rescue operations. Nevertheless, this does not mean that the Coastguard s helicopter-carrying vessels have completely lacked helicopters in Total helicopter flying hours of 1024, 1641 and 1097 were noted for the Coastguard for 2003, 2004, and 2005 respectively. 307 However, it must be emphasised that during this period only one vessel was able to operate under all conditions as this vessel had on board the original airborne warning radar system that was to be scrapped. 308 The procurement of new multi-role helicopters (NH-90) for the Coastguard and for the new frigates of the Norwegian Armed Forces is also of relevance in this connection. This is a procurement project decided on by the Storting during the 2001 budget proceedings. 309 In the case of the Coastguard, six NH-90 helicopters were intended to replace the old Lynx helicopters used by the Coastguard up to the present, which have a limited remaining useful life. Originally the first NH-90 helicopters were to be phased in from However, the delivery has been heavily delayed and the delivery date for the first helicopter has been deferred until the first half of The combination of radar problems and delayed helicopter delivery means that the Coastguard s helicopter force has not functioned as foreseen over a nine-year period from the start of radar problems in 1999 until the first NH- 90 helicopter is delivered in In addition, according to the Coastguard, delivery of the first NH-90 helicopter in 2008 does not mean that the Coastguard s helicopters will be fully operational from It will take some time until all the NH-90 helicopters are in place, and extensive testing is also necessary. Coastguard Staff has therefore indicated that 2012 is a realistic time frame for fully operational helicopter strength. This in turn may cause problems, because the helicopter-carrying vessels in the Nordkapp class will then only have 306 The Coastguard s annual report, The Coastguard s annual reports The Coastguard s annual reports Budget recommendation no. 7 to the Storting ( ). 135

140 around eight years of useful life left. In addition, the Nordkapp class has undergone considerable upgrades in order to handle the NH-90 helicopter, which is a much bigger and heavier helicopter than today s Lynx helicopter. Coastguard Staff has stressed in this connection that if it had been known at an early stage that the NH-90 would be considerably delayed, these upgrades would not have been carried out. The reason is that the upgrades are of limited value if the helicopters are not delivered until the remaining Nordkapp class vessels have only a short residual useful life. Coastguard Staff would have preferred to phase out the Nordkapp class vessels if this had been known at the time. The Norwegian Armed Forces are attempting to solve the helicopter problem by extending the life of the old Lynx helicopters. This is also a relatively demanding process, since all the helicopters in question must undergo comprehensive testing at the factory. Therefore the Coastguard has taken the initiative to hire civil helicopters to cope with the situation, but the outcome of this initiative had not been clarified as of December The Norwegian Armed Forces Orion surveillance aircraft are also of importance in ensuring that the Coastguard has a good overview of fisheries. However, the Coastguard has no control of the activities of the Orion aircraft. According to CSN, it is difficult to get them to fly where and when the Coastguard has a need for them. 310 Other types of air support hired by the Coastguard include a civil Dornier aircraft stationed on Svalbard. This aircraft can be used by the Coastguard as needed. 6.7 Distribution of work between the Coastguard and the Directorate of Fisheries other aspects of inspection activities Fishing vessels monitored in the Directorate of Fisheries regional inspections may also be included in Coastguard inspections. In order to ensure the coordination of inspection activity, a system for joint national risk assessment has as mentioned above been established at an overarching level for the directorate, the Coastguard and one of the sales organisations. The national risk assessment for clarifies the areas that must be particularly targeted in resource control as well as how the inspection tasks of the various subordinate agencies and the sales organisations shall be organised. The directorate and all the selected regions stated that they are well satisfied with their cooperation with the Coastguard. The directorate stressed that this applied both centrally and regionally. The regions referred to the exchange of inspection data, the Coastguard s support in monitoring the Lofoten fisheries, and the practical implementation of the inspection work. CSN also stated when interviewed that cooperation with the directorate in resource control is generally very good. However, in some cases support from the directorate was somewhat inadequate, particularly in light of the fact that in resource control the Coastguard primarily operates on behalf of the directorate. Another measure to ensure cooperation identified by three of the regions and the directorate was the establishment of a resource control group for northern Norway in the early years of this century in which the Finnmark, Troms and Nordland regions participated as well as CSN, the Norwegian Fishermen s Sales Organisation and the Norwegian Fishermen s Sales Organisation for Pelagic Fish. The members of the control group discuss resource control 310 Interview with Coastguard Squadron North, 16 August

141 topics of current interest as well as present and possible future challenges in resource control work. Another central topic mentioned was coordination of the application of regulations. The Coastguard and the regions do not exchange current inspection information on a general basis, e.g. concerning which vessels have been inspected, although this does happen in the case of some fisheries. A review of all inspections carried out by the Coastguard and the directorate s regions in shows that within a period of ten days about 150 fishing vessels were involved in 200 inspections by the Coastguard and the directorate s regional offices. Some regions reported when interviewed that the regions can provide back-up in the inspections or conduct an ordinary landing inspection of vessels that the Coastguard has arrested. The Coastguard may also participate in ordinary landing inspections. One of the regions added that the Coastguard mainly inspects ocean-going vessels, and in the time that elapses between such an inspection and a landing inspection the vessel may have fished large quantities of fish. Moreover, the directorate stated that the Coastguard and the regions may carry out inspections of the same object within a short period of time and these may overlap to some extent. The directorate added that when the joint inspection database and the fully operational electronic communications module for this are functioning satisfactorily it will be possible to avoid such unnecessary overlapping because all inspectors attached to the Coastguard and the directorate will be updated continuously on the subjects of inspections. 6.8 Enforcement activities of other administrative agencies Violations of fisheries regulations may both lead to and be a result of violations of regulations administered by the customs and excise authorities and the tax administration respectively. Both are subordinate to the Ministry of Finance and each comprises a central directorate and local administration. The two agencies have responsibility for determining and collecting substantial government revenues. In addition, the customs and excise authorities are responsible for preventing the illegal import and export of goods. Both agencies inspect those who are liable to tax and government charges in order to safeguard government revenues. The customs and excise authorities also carry out border controls. The inspection work of the two agencies can also help to detect attempts to withhold fish from registration. In the following a description is given of the inspection activities of these two agencies that target the fishing industry, with emphasis on cod in Enforcement activities of the customs and excise authorities The general goals of the customs and excise authorities as laid down by the Storting and the Ministry of Finance are to prevent the illegal export of goods and to ensure an accurate setting of government charges etc. According to the Directorate of Customs and Excise authorities, the agency s work vis-à-vis the fishing industry relates particularly to obligations under free trade agreements and cooperative agreements with foreign customs authorities. In addition, the agency has responsibility for determining and collecting export duties when fish is exported. 311 The customs and excise authorities carry out various inspection activities in 311 The duty in its entirety forms part of the funding of the Norwegian Seafood Export Council. Just under NOK 160 million was collected in export duties on fish in Cf. Report no. 6 to the Storting ( ) Om gjennomføring av råfiskloven og fiskeeksportloven i 2003 og 2004 [On the implementation of the Act relating to the marketing of raw fish and the Act relating to the regulation of exports of fish and fish products in 2003 and 2004]. Export duties must be paid in accordance with the following rates (all figures are given as percentages): a) Fish and fish products with the exception of products mentioned under b, c, d, e, f, g = 0.6 per cent b) Salmon products to the EU in accordance with the salmon agreement of 2 June 1997 = varied from 3.3 per 137

142 order to prevent illegal exports of fish etc. and to assess the correct taxes on fish exports. The agency also wishes to help to combat unregulated fishing operations through its control work. The operational inspection work takes place in the six customs regions of the customs and excise authorities Export of goods In order to prevent unregulated and illegal export of goods such as fish, the customs and excise authorities carry out inspections both in connection with the export declaration and when goods leave the country. Inspection when goods are declared for export customs clearance control When exporting goods, including fish, the proprietor of the goods 312 has a duty to submit a customs declaration to the customs and excise authorities. 313 The scope of action of the customs and excise authorities is primarily within Norway s customs territory (territorial frontier, territorial maritime frontier = 12 nautical miles). Pursuant to current legislation, the boundary of the customs territory must be passed before the duty to declare goods to the customs and excise authorities is applicable. If fish is caught outside the customs territory and transported directly to another country, this is not regarded as either import or export pursuant to the Customs Act. 314 When exporting fish, the exporter must submit a customs declaration electronically via the customs and excise authorities electronic clearance system (TVINN). In the customs declaration the exporter is required to provide information about the goods (including the item number) that are to be exported and their value. cent to 1.05 per cent in the period c) Salmon to other countries and other salmon to the EU, with the exception of smoked salmon and trout = 1.05 per cent d) Stockfish, clipfish and salted fish (including salted fish fillet) and related products, with the exception of dried fish heads where duty is payable as under a) and products mentioned under e) = 1.05 per cent e) Prepared fish, with the exception of canned fish = 0.5 per cent f) Preserved and semi-preserved fish, shellfish and molluscs that come under duties to Fondet for hermetikk- og næringsmiddelindustrien (the fund for the canning and food industry), cf. section 1 of the regulations of 30 December 1988 regarding duties on canned food = 0.2 per cent g) Herring meal and herring oil = 0.3 per cent. 312 Or a carrier acting on behalf of the proprietor of the goods. 313 Cf. section 38 of the Customs Act of 10 June Cf. section 1 of the Customs Act of 10 June

143 Box 10 System for electronic declaration via TVINN All the electronic declarations will be automatically checked for formal errors on transfer to TVINN (check of in-data or input control). This will include checking whether all the required fields in the declaration form have been filled in and whether duties and excise are correctly calculated in relation to the item number and preference stated. This check is based on the basic data registered in TVINN. If errors are detected, the declaration will be returned automatically to the declarant with an error message. For example, if the export duty relating to the export of fish has not been correctly entered and calculated in the declaration, the declaration will be returned. The exporter must then submit a new, correct declaration. According to Section 1 of the regulations of 22 March 1991 relating to the export of fish and fish products, only approved exporters can export fish. The Norwegian Seafood Export Council approves exporters, and the customs and excise authorities register approved exporters with an organisation number in TVINN. If an item number relating to fish products is declared in connection with exports, the exporter must be registered as an approved exporter in TVINN. If this is not the case, the declaration will be stopped in the in-data check and an error message sent to the declarant. Declarations that have passed the automatic check will undergo a dynamic filter control. A filter consists of pre-defined criteria such as links between the item number and duties, or between the item number and restrictions This check is based on primary data registered in TVINN. The filters may also be based on probability, for example between the item number, price and weight. Objective filters established locally by subordinate agencies may be based on one or more of the customs declaration fields (for example, that all declarations from one exporter must be stopped). Random filters are also used. Declarations that are not flagged by a filter are released and the declarant will receive a receipt stating that the goods have cleared customs. Declarations that are flagged by one or more filters will be stopped in TVINN. The declaration will then be annotated to the effect that it may be subjected to further checks, and may be submitted to appropriate customs officials. The official must decide whether a declaration that has been stopped shall be released, or whether the declaration should be subjected to a closer inspection. A closer inspection means that the documents on which the declaration is based are examined, and in some cases the goods that are to be exported are also physically inspected. Checks of export declarations for cod Figures from the Directorate of Customs and Excise show that the agency received just over declarations 315 for the export of cod and cod products in Altogether just below 2 per cent, or 600 of these declarations, were annotated by TVINN filters. The figures show that there is a regional variation in the extent to which declarations are stopped in TVINN as well as in the degree to which declarations that are stopped are subjected to further checks. 317 According to representatives from the directorate, variations in the scope of the control after filter selection are due to differences in the filter settings. When a more specific filter is used (one with several parameters), a high percentage of the declarations stopped by the filter will normally be checked, but when a more general filter is used, a greater number of declarations, which it may not be desirable to check, will be stopped. The 315 There are no exact figures for the number of export declarations that contain cod products, only the number of tariff lines. A declaration can contain several tariff lines. On average an export declaration contains just under two tariff lines. The agency received export declarations consisting of a total of tariff lines of cod in Item number given in accordance with customs tariffs /2033/2039 and /5101/5102/5103/5104/5107/ Cf. Appendix 1 for detailed information about selection by filters, checks after filter selection and detected contraventions of the regulations. 139

144 quality of the declaration may also vary from region to region depending on the declarant s knowledge of industry products. This has a bearing on which filters capture these declarations and what percentage it is desirable or necessary to check. An overview of detected violations of the regulations from the directorate shows that no attempts at smuggling or fictive exports were detected in the assessment control in connection with export declarations for cod and cod products in However, attempts to export goods illegally may also take place without the goods being declared in TVINN. It is therefore a key task for the customs and excise authorities to have physical controls at border checkpoints, and also accounting audits. Controls at border crossings By means of border controls the customs and excise authorities can detect attempts to export cod that has not been declared and that has perhaps been withheld from registration with the fisheries authorities. On the orders of the Data Inspectorate, the customs and excise authorities cannot register what has been inspected in border controls if no violations of the regulations have been detected. The agency can only register inspections that reveal attempts at smuggling or other circumventions of regulations when goods are imported and exported. Therefore there are no statistics on the number of inspections targeted at export consignments of cod in border controls. A review of the reporting system for border controls (intelligence system) carried out by the Directorate of Customs and Excise shows that twelve attempts to smuggle unregistered whitefish out of Norway were detected in All these were related to private individuals who had attempted to smuggle amounts of between 20 and 250 kilos of whitefish, mainly cod. No attempts by business enterprises to smuggle cod or cod products from Norway to other countries were detected at border controls. However, the border control alone will not as a rule detect that fish intended for export has been landed without being registered if all form requirements for the export consignment have been fulfilled. This will demand more comprehensive controls, e.g. accounting audits. Border control cooperation with Russian customs authorities According to the Directorate of Customs and Excise, a few border control actions were carried out in cooperation with the Russian customs authorities in On three occasions in this period the agency, in collaboration with the Russian customs authorities, inspected articulated lorries carrying fish products from Norway to Russia. All lorries transporting fish that passed the main border crossings for export to Russia over a period of from two to four weeks were inspected. The cooperation took the form of the Norwegian customs and excise authorities copying all documents at the border and sending them to the Russian customs authorities. The Russian authorities carried out a physical inspection when these lorries were unloaded. In the two actions that took place prior to 2003, the Norwegian customs and excise authorities received limited feedback on the inspections conducted by the Russian customs authorities. Therefore there are no statistics available on the scope of the inspections or information about the quality of the inspections carried out in the Russian part of the action. However, according to the directorate the actions revealed extensive cheating as regards the 140

145 value of the load on the Russian side. In the last collaborative action at the end of 2003, 84 lorries transporting fish were inspected. The customs and excise authorities received feedback on each lorry inspected by the Russian customs authorities. According to the directorate, no significant discrepancy was found between what had been declared to the Norwegian customs authorities on export and the actual export Controls of business enterprises An important part of the work of the customs and excise authorities to ensure that customs and excise duties are assessed correctly and to detect attempted illegal carriage of goods over the border consists of auditing the accounts of those parties liable for customs, value added tax and excise duty. This type of control will also be directed at fish-related business enterprises and will be able to detect any cod that has been withheld from registration. Control of origin Action EU In audits were conducted of all 200 exporters of cod and other whitefish in Norway. The action was initiated after the detection of contraventions of the regulations on certificates of origin in connection with fish exports. According to the Directorate of Customs and Excise, these inspections revealed that some business enterprises had serious errors in their internal systems and a considerable number of certificates of origin had been issued on an incorrect basis. For the great majority of business enterprises no errors were detected in respect of the issue of certificates of origin for cod. According to the directorate, a few of the inspections of certificates of origin also revealed unregistered cod in some of the enterprises. Again according to the directorate, this type of finding during inspections was not recorded in the directorate s reporting system. Therefore there are no data available on the number of inspections that revealed unregistered cod in business enterprises. Information about these contraventions was submitted to the Directorate of Fisheries regional offices and the tax administration. 319 Other inspections targeted at fisheries business enterprises In the period the customs and excise authorities have taken steps to strengthen their efforts in the export area through nationwide inspection programmes. The inspections are to focus in particular on exposing fictive exports and illegal sales. To the best of the Directorate of Customs and Excise s knowledge, these inspections of business enterprises have not uncovered other cases of unregistered sales of cod The Tax Administration s surveillance activities The general goal of the tax administration includes ensuring correct assessment of taxes and government charges. In order to ensure that this complies with applicable regulations, the tax administration must monitor the basis for the assessment of taxes and government charges pursuant to various statutory provisions. 320 This is achieved partly by checking compulsory returns submitted by the business sector, and by auditing the accounts including vouchers of business enterprises. This surveillance activity also targets business enterprises in the 318 Cf. Appendix 1 on the background for this control action. 319 Cf. chapter on the control activity of the Tax Administration for a description of how the agency has followed up some of this information. 320 Sections 4-10 and 6-15 of the Act relating to tax assessment, Sections 46 and 47 of the Act relating to value added tax, Section 47 of the Act relating to tax payment, and Sections 23-2 and 24-5 of the Act relating to national insurance. 141

146 fishing industry. The checks carried out by the agency can also reveal attempts to withhold fish from registration. The tax administration s county tax assessment offices and local tax assessment offices conduct operational audits vis-à-vis the business sector The Tax Administration s fisheries network The tax administration has organised inspection activities targeted at the fishing industry through a fisheries network. The background for establishing such a network was an initiative from the heads of the tax authorities in the three northernmost counties requesting that there be more emphasis on inspections in the fishing industry. Following a preliminary project, the agency s fisheries network was established in 2003, when it was expanded to include eight coastal counties. The network consists of one member from each of these counties. Most members of the network are either linked to a county tax assessment office or to a local tax assessment office. Fisheries groups have also been established in most of these counties. The network comes under the Directorate of Taxes, which has formal authority vis-à-vis the network. In practice, all of the directorate s tasks in this respect are delegated to the Nordland county tax assessment office. Every year a joint monitoring plan is compiled for the tax administration s fisheries network. The plan is intended to reflect the total control efforts that the tax administration directs at the fishing industry. One of the areas that the network focuses on is the landing and sales of unregistered fish. The tax administration conducts various checks to reveal any contraventions of the regulations in this connection. It is important that the network contributes to equal treatment for all those liable to pay taxes and other charges, and that the frequency of inspection is not skewed. Tax audits A central surveillance method used by the tax administration is the conducting of audits of the accounts of those liable to pay value added tax. In these audits the accounting documentation will be reviewed to ensure that business enterprises pay the correct taxes and government charges to the State. These controls can also reveal whether attempts have been made to evade registration of fish. In order to acquire an overview of some of the tax administration s surveillance of business enterprises in the cod industry, the administration carried out a review of the extent to which 814 selected exporters and buyers of cod had been audited by the agency in Figures from the tax administration show that 308 of the altogether 814 business enterprises had been audited in This corresponds to an average coverage of approximately 12.5 per cent annually. The result of the audits was that 50 of the business enterprises audited had to pay additional value-added taxes totalling almost NOK 16 million. The tax administration does not routinely compile statistics of the number of audits that have revealed attempts to evade taxation of fish. In order to acquire an overview of the degree to which additional VAT levies could be linked to unregistered fish, nine of the business enterprises were selected at random in order to investigate whether changes in the assessment of VAT could be linked to unregistered sales of cod. 321 Several enterprises were also inspected at the time of VAT assessment reporting control. 142

147 This review showed that in two out of nine enterprises attempts had been made to evade taxation of revenues from sales of fish. According to the county tax assessment office that inspected both these enterprises, it was deemed inexpedient to attempt reconciliation of sales of fish, partly because of the very incomplete accounts. It would probably not have been possible to document the extent of unregistered sales. In addition, the audit was directed at matters other than unregistered sales of fish. In one of the enterprises there were strong indications that unregistered fish had been exported without an export declaration. In the seven other enterprises, the retrospective assessments were due to circumstances that could not be associated with unregistered sales of fish. The tax administration stated that there is no general focus on yield factors in controls but that this will be focused on to the degree that it is relevant to tax issues. It is often in connection with joint inspections with the Directorate of Fisheries that this issue comes up. By means of the fisheries network, the tax administration wishes to establish an interdisciplinary task force with representatives from the Directorate of Fisheries and the customs and excise authorities. This can be a great strength in control work, particularly in relation to Russia and overfishing. Work with this wide-ranging problem demands coordinated efforts over time. When interviewed, the tax administration stressed that there are several subordinate agencies that have separately attempted to acquire a full picture of a large fisheries enterprise. In the view of the tax administration, they would have been in a stronger position and could have revealed more offences if these inspections had been better coordinated among the different agencies. The other control activities of the tax administration will be described in the following section on cooperation between the enforcement authorities. 6.9 Cooperation between the Norwegian enforcement authorities Partly because the Directorate of Fisheries, the tax administration and the customs and excise authorities direct some of their monitoring activities towards the same control objects, the three agencies have entered into an agreement on cooperation on enforcement matters. The agreement was entered into in 1993 and was last updated in According to the agreement, the Director General of Fisheries, the Director General of Taxation and the Director General of Customs and Excise must define the parameters for cooperation between the three agencies. The agreement also stipulates that there shall be formal cooperation between the senior managements of the three directorates and also regionally and in local administration. The agreement sets out provisions stipulating that the regional management of the three agencies shall coordinate enforcement work where this is of mutual interest. This might involve coordination of inspection plans, joint selection of parties to be inspected and possibly coordinated inspections. In addition, the agencies must exchange information through this cooperation, for example on strengthening competencies related to the inspection tasks that the three agencies are required to carry out. The Directorate of Fisheries stated when interviewed that collaboration with the tax administration and the customs and excise authorities functions well. All the directorate s 143

148 regional offices that were interviewed said that meetings took place annually between senior management at the regional level as well as meetings at the operational level in order to identify subjects for joint controls etc. Three regions reported that a regional contact person had been appointed vis-à-vis the tax administration and the customs and excise authorities, partly to improve the efficiency of communication. All the regional offices of the Directorate of Fisheries reported when interviewed that control actions are carried out jointly with the tax administration and the customs and excise authorities. However, one of the regions stated that joint controls with the other two agencies had been carried out to only to a limited degree in recent years, partly because of a lack of resources. The three other regions highlighted operational cooperation on enforcement with the tax administration targeted at unreported landings and sales of fish. In this work the two agencies are attempting to acquire an overview of the extent of illegal landings and sales of fish, for example through joint inspections of fishermen and fish landing facilities. The regions also mentioned joint inspections of mobile sales 322 of fish and fish products as part of the work targeted at detecting unregistered fish. The regions reported that joint controls with the customs and excise authorities often take place through transport inspections and export controls. Two of the regions stated that cooperation with the tax administration was somewhat closer than with the customs and excise authorities. The Directorate of Fisheries is also of the opinion that it is particularly through the tax administration s fisheries network that cooperation has been effectuated in recent years. The directorate stated when interviewed that it is aware that there are variations in the degree to which individual regions collaborate with the tax administration and the customs and excise authorities. Although all the regions must report on cooperation with the tax administration and the customs and excise authorities, some of the regions must be reminded of this requirement. As a rule the regions that have least to show in the way of cooperation are those that sometimes fail to report within the time limit. Three of the regions reported when interviewed that joint controls can detect contraventions of taxation regulations, and one region stated that the customs and excise authorities had also detected violations of the regulations during joint controls. One of the regions underlined that minor errors that are detected within the fisheries area in a joint control may have a major impact in the taxation area. The Nordland county tax office reported that it may be a strength of joint inspections that a business enterprise can be called to account under several statutory provisions at the same time. The arguments used by an enterprise to prove its innocence in light of regulations pertaining to one agency may imply that the enterprise is violating the regulations of another agency. When several agencies carry out control work at the same time, matters of this kind will be detected to a much greater extent than if controls are carried out independently. A report is compiled annually for the director generals of the three agencies summing up the cooperation on enforcement. 322 Mobile fish sales are carried out by travelling fisher sellers (fish vans), from market stalls or directly from fishing vessels. 144

149 6.9.1 Sub-committee under the permanent committee participation of the Tax Administration and the customs and excise authorities At the annual session of the joint Norwegian-Russian Fisheries Commission in 2005 (34 th session) a sub-committee was established under the Permanent Norwegian-Russian Committee for Management and Enforcement Cooperation within the Fisheries Sector. 323 According to the protocol, the sub-committee shall prepare measures to improve control and to ensure the use of penalties in connection with violations of the fisheries provisions in the Barents Sea and the Norwegian Sea. A recommendation was put forward to include a greater number of relevant agencies with the aim of ensuring the uniform treatment of enforcement issues. 324 The tax administration and the customs and excise authorities are represented on the subcommittee and both have attended the two meetings that have been held. 325 The Directorate of Customs and Excise reported that the Russians customs authorities did not attend the two meetings. The tax administration via the Nordland county tax office stated when interviewed that representatives of the Russian Tax Administration attended the last meeting of the subcommittee. 326 In the opinion of the Norwegian tax authorities, the Russian tax authorities are positive to the cooperation. The topics discussed at the meeting were followed up on the Norwegian side at a later meeting in the group for border cooperation on enforcement, in which the Russian Tax Administration from the northern areas participates. According to the protocol for the Joint Commission s 35 th session, the committee has not functioned as intended since representatives from all the relevant Russian authorities have not attended. Therefore no further meeting of this sub-committee has been arranged Control and enforcement agreements with other countries In light of the fact that foreign vessels can fish in areas that are under Norwegian administration and that Norway shares large fish stocks with other nations, international work is important to ensure rational management and exploitation of fisheries resources. In this connection, control of the harvesting of fish is of central importance. The Norwegian fisheries management works in several arenas to achieve control agreements and joint control regimes with all relevant countries. In addition to the bilateral agreements Norway has with a number of countries, active work is proceeding at regional level through the North East Atlantic Fisheries Commission (NEAFC). 328 Norway signed a Memorandum of Understanding (MoU) on the monitoring, control and surveillance of fisheries with the EU on 4 October The Norwegian fisheries management anticipates that this agreement will ensure that Norway concludes agreements on monitoring, control and surveillance with all relevant EU countries and that the agreements will include all the key factors that ensure satisfactory control cooperation. 329 A description of international control work with third 323 Cf. Protocol of the 34 th session of the Joint Norwegian-Russian Fisheries Commission. 324 Protocol of the meeting of the sub-committee of the Permanent Norwegian-Russian Committee for Management and Enforcement Cooperation within the Fisheries Sector, Moscow March Meetings with the Tax Administration and the customs and excise authorities respectively. 326 The meeting was held in Bergen in June Minutes of a meeting of the enforcement departments in the Directorate of Customs and Excise, the Directorate of Taxation and the Directorate of Fisheries, 7 December North-East Atlantic Fisheries Commission. 329 Minutes of a meeting with the Directorate of Fisheries, 9 November

150 countries follows below. Control cooperation with Russia has been discussed in the chapter on the implementation of decisions reached by the Fisheries Commission Bilateral agreements As of October 2006, Norway has concluded bilateral agreements on control cooperation with 16 countries, including Russia. 331 The Directorate of Fisheries administrates the agreements and in the view of the directorate it is important that the following points are included in the agreements: 332 Exchange of landing data, where the parties inform each other about the amount of fish landed by each party s vessels in the other party s ports, irrespective of where the fish is caught. Exchange of landing data from third countries on catches of stocks for which Norway is the coast state. Exchange of inspection personnel. Inspectors from one country may be present when the other country s inspectors check a vessel. In this way inspectors learn from each other and gain experience of how the other party conducts inspections. Exchange of data on contraventions and sanctions. For example, information on the arrest of a vessel in Norwegian waters will be immediately notified to the flag state of the vessel arrested. 333 This is the procedure in the case of all countries with which Norway has concluded agreements. Some agreements give the parties a more wideranging obligation to provide information for example warnings must also be reported. A review of the bilateral agreements shows that the contents of the agreements vary from country to country. All agreements, with the exception of the agreement with Canada, contain provisions on the exchange of landing data. 334 This information must be provided at vessel level. In addition, several countries must give information about third-party landings of fish from stocks for which Norway is the coast state. Some countries are obliged to provide information about this at an aggregated level in accordance with the agreements, while others must also report at vessel level. 335 A number of the agreements specify the manner and frequency of the transfer of data. The review of the agreements shows that they include provisions on the exchange of personnel, apart from the agreements with Canada and Morocco. In addition, several agreements include clauses on joint training of inspection personnel. 330 Chapter 5, Topic 2: Implementation of decisions taken by the Fisheries Commission. 331 Canada, the Faroe Islands, Greenland, Iceland, Morocco, Russia, Denmark, France, Ireland, Lithuania, the Netherlands, Poland, Portugal, the UK, Sweden and Germany, cf. handbook of all agreements relating to cooperation on control and enforcement delivered to the OAG on 9 November Minutes of a meeting with the Directorate of Fisheries, 9 November This practice does not originate from the control and enforcement agreements. Norway is obliged pursuant to Article 73.4 of UNCLOS to notify all flag states of enforcement measures directed at their vessels. 334 Cf. handbook containing all control and enforcement agreements submitted to the Office of the Auditor General on 9 November The agreement with the UK specified that all information on third-country landings should only be reported at aggregated level to ensure that the identity of the individual vessel was not revealed. 146

151 Eight of the 16 bilateral agreements include provisions requiring that the other party be informed both of cases where the coastal state s inspectors have revealed that the flag state s vessels have violated the regulations and of any sanctions imposed on the flag state s vessels. Other items included in several agreements cover the exchange of information on inspections carried out at sea, and also regular meetings where topics such as surveillance and enforcement are discussed and planned New Memorandum of Understanding with the EU In order to strengthen fisheries cooperation with the EU, Norway signed an MoU 336 with the EU in October 2006 for future bilateral agreements between Norway and EU member states. Through this MoU Norway and the EU agreed that the existing framework for monitoring, control and surveillance should be improved through regional cooperation bodies and through cooperation between Norway, the EU and EU member countries. The agreement promotes the conclusion of bilateral fisheries agreements for control and enforcement between Norway and all EU member countries and specifies the elements that should be included in the bilateral agreements. This applies, for example, to the exchange of landing data on third-country fishing vessels. This information is central to the work of the Directorate of Fisheries of analysing Russian fishing activities in the Barents Sea. Representatives from the Finnmark region reported when interviewed that only Germany and the Netherlands have submitted this type of information to Norway as of today. This type of information has also been received from other countries through informal channels. The MoU also mentions that other aspects may be relevant in the bilateral agreements such as cooperation on air surveillance and the exchange of information on fishing vessels observed as well as regular meetings where the parties discuss and plan topics within the field of surveillance and enforcement. According to the Directorate of Fisheries, all agreements with EU countries should be revised to bring them into line with the new MoU with the EU. In addition, agreements can now be prepared with nations that Norway does not have agreements with at present. In the past, Spain has refused to enter into an agreement with Norway, claiming that there was no statutory authorisation for Spain to conclude such an agreement. The lack of such an agreement with Spain has up to the present been a considerable weakness in cooperation on enforcement with other countries. For this reason, the Ministry of Fisheries and Coastal Affairs has made efforts to initiate a dialogue with the Spanish fishery authorities on this subject. The ministry and the Spanish Ministry of Agriculture and Fisheries agreed on 12 March 2007 to draw up a bilateral agreement on resource control, and work on this will commence at the end of March NEAFC agreement on port state control In addition to bilateral efforts, Norway is working to strengthen regional control regimes. The NEAFC is a central cooperation body in this connection. 336 Memorandum of Understanding. 147

152 In November 2006, the NEAFC adopted new, binding rules on port state control that are to come into force on 1 May The rules will apply to all member countries of the NEAFC. Port state controls include landings from both fishing vessels and trans-shipment vessels in the ports of member countries. According to the agreement, foreign vessels that are to land frozen fish species in the NEAFC Convention area must send prior notification to the port state before the landing takes place. 338 The notification must include information on the type of fish on board, the amount and the product type. The port state forwards the prior notification to the fishing vessel s flag state, which must confirm that the catch has been lawfully caught and settled against the vessel s quotas before the port state can permit the landing and the onward transport or sale of the fish. The agreement stipulates that a considerable percentage of the landings must be inspected. 339 The inspections must include complete monitoring of the entire landing (full inspection) and must ensure that all the information given is correct, with the intention of preventing the submission of false information in the prior notification. Such violations of the regulations will be sanctioned in the same way as violation of other reporting duties. In addition to better control of landings, the objective of the new NEAFC agreement is that all member countries and organisations shall have access to all information about events in the Barents Sea. 340 According to the Directorate of Fisheries, it is planned to establish a database at NEAFC s secretariat in London to which all member countries are to have access. The database will have an updated overview of landings at all times. For example, the Directorate of Fisheries will be able to check Russian landings in Germany on a continuous basis. The database will also contain information about products and quantities landed and the ICES area 341 in which the fish has been caught. The directorate stated when interviewed that the agreement is regarded as a huge step forward for international control work. Just one year before the agreement was signed, several of the items now included in the agreement were merely ideas put forward by the directorate. The directorate is very satisfied that the parties reached agreement so rapidly. The agreement is partly the result of good cooperation between a number of NEAFC parties Satellite-based surveillance In order to improve the monitoring of fishing vessels, Norway introduced rules on satellite tracking effective as of 1 July The Norwegian authorities have also concluded agreements with the EU, Russia, Iceland, the Faroe Islands and Greenland on tracking fishing vessels in each other s zones. In addition to these agreements, Norway has undertaken to order Norwegian vessels to transmit reports automatically when they are 337 Press release from the Ministry of Fisheries and Coastal Affairs of 15 November 2006 International agreement to combat illegal fishing reached in London. 338 Press release from the Ministry of Fisheries and Coastal Affairs of 15 November 2006 International agreement to combat illegal fishing reached in London. 339 Press release from the Ministry of Fisheries and Coastal Affairs of 15 November 2006 International agreement to combat illegal fishing reached in London. 340 Minutes of the meeting with the Directorate of Fisheries, 9 November International Council for the Exploration of the Sea (ICES) geographical areas of the North East Atlantic. 148

153 fishing in areas managed by international fisheries management organisations such as NEAFC. 342 Satellite tracking means that with the aid of communications equipment on board the individual vessel, the vessel s geographical position, course and speed is automatically transmitted by satellite to the flag state s fisheries monitoring centre (FMC). When a fishing vessel is in areas under the fisheries jurisdiction of other states or in internationally regulated areas, the flag state is required by the agreements to communicate tracking information to the FMC of the state or to the appropriate international fisheries management organisation, depending on the vessel s location. Norway is also discussing with the EU and other countries the possibility of introducing a vessel detection system. 343 The system will operate by photographing relevant ocean areas and will identify any vessels that are not transmitting reports automatically. These vessels can be put under surveillance or inspected if necessary. 344 The objective is to acquire as much information as possible about all relevant vessels, including those that are not transmitting reports automatically, so that full control of all vessels in the North East Atlantic can be acquired through a combination of different instruments Compliance with agreements concluded with other countries The Directorate of Fisheries has stated that it is often the Norwegian fisheries management that takes the initiative to draw up agreements and that observes them. 345 It is the directorate that requests landing information. For the most part the directorate has fixed routines for exchange of information with the countries that are parties to the agreements. One of the problems in respect of compliance with the provisions on the exchange of information is that enforcement work in the countries that are parties to the agreement may be deficient. However, in the opinion of the directorate Norway acquires a better overview of landings because of the agreements. Previously there was limited access to information about stocks in which the Norwegian authorities has interests, e.g. information about Russian landings of cod from the Barents Sea. According to the Ministry of Fisheries and Coastal Affairs, the exchange of information is functioning as intended at present. 346 As previously mentioned, no agreement has been concluded with Spain, and Norwegian fisheries management has had difficulty in achieving cooperation on control and enforcement with Portugal, even though an agreement has been concluded. 347 The directorate has approached Portugal with a request for landing figures but has not received a reply to indicate that the request has been received. Norway now wishes to invite Portuguese inspectors to Norway in order to try to initiate cooperation. The new MoU with the EU will be of central importance in ensuring cooperation on control and enforcement with all relevant EU member countries. The agreement played an important role when agreement with Spain 342 The Ministry of Fisheries and Coastal Affairs, Department of Marine Resources and Environment, Faktaark nr. A-22 (Fact sheet no. A-22). 343 Vessel detection system. 344 Minutes of a meeting with the Directorate of Fisheries, 9 November Minutes of a meeting with the Directorate of Fisheries, 9 November Conferred with the Ministry of Fisheries and Coastal Affairs, 18 April Minutes of a meeting with the Directorate of Fisheries, 9 November

154 was reached on 12 March 2007 that the two countries shall enter into a bilateral agreement on control and enforcement. According to the Directorate of Fisheries, it is most important to have agreements with Denmark, the UK, the Netherlands and Russia. 348 Cooperation between Norway and Germany appears to have functioned well Assessments: resource control in Norway Resource control is a key fundamental instrument in ensuring that the harvesting of fish is in complete conformity with the goal of sustainable resource management. This is made clear in international and bilateral agreements, annual protocols of the Joint Norwegian-Russian Fisheries Commission and in decisions reached by the Storting. The investigation shows that control of fish uptake and other provisions designed to regulate fishing operations is broadly based. The control system is based on the principle that all landings and first-hand sales of fish are registered and settled against both the individual vessel s quota and total quotas. In order to ensure that these obligatory registration schemes are adhered to and that other fisheries provisions are complied with, the Coastguard and regional offices of the Fisheries Directorate conduct surveillance at sea and inspections of landings and fish landing facilities, respectively. The customs and excise authorities and the tax administration are central enforcement authorities in this connection. Quota control The investigation shows that the quota control system mainly functions as intended. The exclusive rights of sales organisations to first-hand sales of fish and their appurtenant duty to carry out checks help to prevent illegal sales. The Directorate of Fisheries in particular has worked in recent years to ensure that data on quotas and other data on which the sales organisations must base the quota settlement in the case of the individual vessel are timely and correct. Together with the sales organisations updating of their own systems, this allows the quotas to be settled on an ongoing basis and not periodically as earlier. Therefore it is important that the directorate monitors the ongoing settlement of individual quotas by the sales organisations and that the landing declarations are used as intended. Ongoing settlement based on both landing declarations and sales notes will ensure an even better overview of quotas. It appears that the Ministry of Fisheries and Coastal Affairs may now be monitoring the funds confiscated by the sales organisations in connection with violations of Sections 7 and 11 of the Sea-Water Fisheries Act more closely than before. It is also a positive step that the Directorate of Fisheries wishes to strengthen its own control function vis-à-vis the sales organisations. Enforcement activity of the Coastguard and the Directorate of Fisheries Quota control is based on information from representatives of the fishing industry. The principle is thus based on a considerable degree of trust in the industry and on the industry itself exercising responsibility. A prime task for the Coastguard and the Directorate of Fisheries is therefore to ensure compliance with the quota provisions and other regulations 348 Minutes of a meeting with the Directorate of Fisheries, 9 November

155 applicable to the fishing industry through supplementary inspections of vessels and fisheriesrelated activities. Enforcement activity of the Coastguard In general it appears that the Coastguard s strategic and operational risk analyses provide a sound point of departure for effective resource control. Moreover, the level of activity must be regarded as high, since over 90 per cent of available resources are devoted to operational activities. A review of the coverage rates for Norwegian, Russian and third-country trawlers shows the coverage rate to be clearly higher for Russian and third-country trawlers than for Norwegian trawlers. This is assumed to be partly because Norwegian vessels land their catches in Norway and can thus be inspected also on landing, and partly because of the need to collect documentation from Russian vessels as a step in the Directorate of Fisheries analyses of Russian fishing operations. The Coastguard has long faced major challenges as regards the availability of equipment. The combination of an ill-advised purchase of radar equipment and the delayed delivery of new helicopters has meant that for a number of years helicopter capacity has been heavily reduced. This raises the question of whether preparedness is adequate in relation to the general goal of asserting Norwegian sovereignty in Norwegian territorial waters and sovereign rights in ocean areas under Norwegian jurisdiction. In order to ensure better control of the uptake of fish in the Norwegian Economic Zone north of the 62 nd parallel, a scheme has been introduced whereby foreign fishing vessels must report to the Coastguard for inspections at one of seven control points when they stop fishing in the Norwegian Economic Zone. This scheme has also been recently introduced for fisheries operations in Svalbard s territorial and coastal waters but does not include the Fisheries Protection Zone around Svalbard (Fisheries Protection Zone). The question may be raised as to whether this results in weaker surveillance in this zone than in other waters that the scheme encompasses. Directorate of Fisheries Extent of control The Directorate of Fisheries regional offices have a broad approach to resource control and inspect fishing operations at sea as well as landings and fish-related enterprises on shore. However, the registration scheme for resource control has been deficient and does not provide a correct expression of the directorate s overall enforcement activities. As a result there is less opportunity to manage and follow up the enforcement activities of the individual regional office. An inspection coverage of landings of 1 2 per cent may appear low, but the investigation shows that the quantity checked in inspections of cod is much higher. In addition, a considerable number of landings are checked indirectly through follow-up inspections. This is not captured to a sufficient degree in reporting. For example, when the guidelines state that the inspection work must put emphasis on cod, the question must be raised as to why no reporting system has been established that would enable the directorate to follow up such requirements vis-à-vis the regions. Although the registration system appears to have been strengthened during the investigation period, it must be questioned whether the directorate has established a registration system for enforcement activity that provides a comprehensive and correct expression of the region s 151

156 enforcement work. This is regarded as vital in light of general requirements for effective and stricter resource control. The investigation shows that all Russian fishing vessels and trans-shipment vessels that call at Norwegian ports are inspected. This prioritisation is based on the desire to acquire the best possible overview of Russian fishing operations in the Barents Sea. Allocations to the directorate have been increased, partly to strengthen international activities. However, it may be questioned whether sufficient resources have been invested in this work in view of the importance of stopping unregulated fishing operations in the Barents Sea. Control opportunities and invalid yield factors The regions have increased their control efforts with respect to storage facility and sales inspections at fish landing facilities and other shore facilities. This type of inspection has a greater possibility of revealing systematic attempts to withhold fish from registration etc. However, the investigation shows that in the absence of valid yield factors the regions show some reservations about conducting such inspections at landing stations and cod processing plants. The reason is that the results of inspections are uncertain and therefore it is difficult to achieve a satisfactory outcome in court cases involving violations that have been detected and reported. The directorate s current efforts to develop new yield factors may result in adequate inspection at cod-processing plants. Updating the regulations to give the inspectors the necessary powers to conduct inspection work in this area should also be considered. International agreements The investigation shows that during the autumn of 2006 the fisheries management should pave the way for strengthened international cooperation on enforcement. The requirements for data on all landings undertaken in EU and NEAFC countries are of central importance in ensuring good control of the total uptake of fish. If these agreements are to function, all parties must comply with the provisions of the agreements. Norwegian fisheries administration can be a prime mover in this work. Cooperation on enforcement with other subordinate agencies and their control activities Violations of the regulations within the fisheries sector may both lead to and result from violations of regulations administered by the customs and excise authorities and the tax administration. Both these agencies aim aspects of their control activities at the same targets as the regional offices of the Directorate of Fisheries. An agreement on enforcement has been concluded between the three agencies to ensure coordination and cooperation. However, the investigation shows that the extent of the operational cooperation between the customs and excise authorities and the tax administration varies in the directorate s regional offices. Although both the customs and excise authorities and the tax administration detect illegal fish in their routine monitoring activities, the investigation indicates that joint inspections could result in both a stronger focus on crime related to the exploitation of resources and greater opportunities for detecting it. The question is whether the level of operational cooperation on enforcement is adequate. In addition, the extent of operational cooperation must be uniform as far as possible in different parts of Norway. In this respect, all subordinate agencies have a responsibility. 152

157 7 Topic 4: Sanctions for violations of acts and regulations relating to the use of living marine resources in Norway 7.1 Audit criteria As with the other sub-topics, audits under this sub-topic are based on both the joint criteria that have been adopted by the SAIs of the two countries and each country s national criteria. A description is given below of the criteria in these two main categories that are relevant to sanctions imposed for violations of acts and regulations Joint audit criteria for sanctions for violations of acts and regulations The joint audit criteria are based on the two bilateral agreements between Norway and Russia (the Soviet Union) of 11 April 1975 and 15 October 1976, and on the protocols of the 32 nd, 33 rd and 34 th sessions of the Joint Norwegian-Russian Fisheries Commission. In the bilateral treaty of 1975 the parties to the agreement acknowledge their responsibility and obligations with regard to taking effective measures aimed at preserving the living resources in the north-east Atlantic. 349 This agreement does not explicitly mention the establishment and application of sanction instruments, but it is reasonable to assume that this is implicit in the phrase effective measures. The bilateral agreement of 1976 is more specific with regard to sanctions since it makes it clear that the parties to the agreement must ensure that their citizens and fishing vessels comply with the provisions both in this agreement and in other regulations pertaining to fishing. 350 In addition, pursuant to the agreement each of the parties can implement the measures necessary to ensure that the other contracting party s vessels comply with the provisions in this agreement. 351 They can do this within their area, which is explained in more detail in Article 1 of the agreement. In the protocols of the 33 rd and 34 th sessions of the Joint Norwegian-Russian Fisheries Commission, both parties acknowledge that there is a considerable unregistered catch of cod in the Barents Sea and emphasise that it is a prioritised goal to use all possible instruments to detect and prevent these illegal activities. 352 Also in this case it is reasonable to assume that sanction measures are implicit in the term all possible instruments. The only explicit reference to sanction measures in these documents is found in item 12.5 of the protocol of the 34 th session. At this session the parties emphasised the necessity of conducting inspections that ensure compliance with the measures adopted, and they also agree that violations of acts and regulations that are detected through such inspections will lead to the imposing of appropriate sanctions. 349 Treaty on Cooperation in the Fishing Industry between Russia and Norway from 1975, Introduction. 350 Agreement on Mutual Fisheries Relations between Russian and Norway from 1976, Article 5, Section Agreement on Mutual Fisheries Relations between Russian and Norway from 1976, Section Protocols of the 33 rd and 34 th sessions of the Joint Norwegian-Russian Fisheries Commission, Section

158 7.1.2 National audit criteria for sanctions for violations of acts and regulations As a follow-up to the Ministry of Fisheries presentation to the Storting in 2001 on unlawful activities and on inspections and measures in the fishing industry 353 Proposition no. 1 to the Storting ( ) Ministry of Fisheries and Coastal Affairs gave an account of the status of each individual measure. It is maintained in this account that clear and unambiguous signals in the form of penalties for violations of the law constitute a substantial measure whether the penalty is of an administrative nature or is set according to criminal law. 354 Administrative sanctions can take the form of depriving vessels of the right to fish or of depriving a fish buyer of the right to sell fish due to repeated or serious violations of the fisheries legislation, cf. Proposition no. 1 to the Storting ( ). According to the Ministry of Fisheries and Coastal Affairs, this is a measure that is still to be used when there is a reason for its application. 355 The same document states that the prosecuting authorities will to a greater extent try to apply the general provisions of the Norwegian General Civil Penal Code in any fisheries-related cases that provide grounds for its use. 356 In Proposition no. 1 to the Storting of , and , Ministry of Fisheries and Coastal Affairs, it was established that the work on cases related to fisheries crime had been assigned greater priority by the police and the prosecuting authorities. 357 Attachment I to the Proposition for also pointed out that the fisheries management authorities are totally dependent on good cooperation with the police/prosecuting authorities in order to combat unlawful activities in the industry. 358 Proposition no. 1 to the Storting ( ) Ministry of Justice and the Police states that the most important tasks of the police in environmental protection are to prevent environmental crime, to conduct inspection and monitoring activities, and to ensure a prompt and appropriate penalty for violations of the environmental protection legislation. 359 The same document also makes it clear that this includes breaches of fisheries provisions Formal frameworks for sanctions General description of relevant acts and regulations, including sanction authority and penalty frameworks 361 This section aims to provide a general overview of the key acts and regulations in the fisheries sector in Norway, including those that are relevant for cod fishing north of 62 N. This encompasses the acts and regulations geographical and functional areas of application 353 Presentation by Otto Gregussen, Fisheries Minister, in the Storting on 3 May Proposition no. 1 ( ) to the Storting Ministry of Fisheries and Coastal Affairs, p Proposition no. 1 ( ) to the Storting Ministry of Fisheries and Coastal Affairs, p Proposition no. 1 ( ) to the Storting Ministry of Fisheries and Coastal Affairs, p Proposition no. 1 ( ) to the Storting Ministry of Fisheries and Coastal Affairs, p. 12; Proposition no. 1 ( ) to the Storting Ministry of Fisheries and Coastal Affairs, p. 12; Proposition no. 1 ( ) to the Storting Ministry of Fisheries and Coastal Affairs, p Proposition no. 1 ( ) to the Storting Ministry of Fisheries and Coastal Affairs, p Proposition no. 1 ( ) to the Storting Ministry of Justice and the Police, p Proposition no. 1 ( ) to the Storting Ministry of Justice and the Police, p This description was assessed by both the Ministry of Fisheries and Coastal Affairs and the Ministry of Foreign Affairs. Comments were given in the Ministry of Fisheries and Coastal Affairs letter and of 13 February 2007 and 18 April 2007, respectively, and in the Ministry of Foreign Affairs of 14 March

159 including sanction authorisation and freedom of action with regard to sanctions/penalty frameworks. However, the overview is not exhaustive, and it has no legal force. In the event of conflicts with Norwegian law, the Norwegian rules of law take precedence Geographical area of application for Norwegian acts and regulations related to fisheries Norwegian acts and regulations related to fisheries apply to a greater or lesser degree in the following areas/zones: 1) the Norwegian Economic Zone, including the Grey Zone ; 2) the Fisheries Protection Zone around Svalbard (Fisheries Protection Zone); 3) the Fisheries Zone around Jan Mayen (Jan Mayen Zone); 4) waters subject to foreign nations fisheries jurisdiction for Norwegian vessels; 5) waters outside any nations fisheries jurisdiction ( international waters ); 6) Norway s territorial waters (territorial sea and internal waters), i.e. the territorial waters around mainland Norway, Svalbard and Jan Mayen; and 7) the Norwegian mainland. 362 In addition, special rules are in force for other territories claimed by Norway: Bouvet Island, Peter I Island and Dronning Maud Land. These will not be discussed further in this report. 1. The Norwegian Economic Zone The Norwegian Economic Zone was established on 1 January 1977 in accordance with the Economic Zone Act 363 (the Economic Zone Act). Pursuant to this Act, Norwegian fisheries authorities ( the King ) can adopt regulations on fishing and hunting activities in this zone. 364 In practice, it is as a general rule only foreign fishing that is regulated under the Economic Zone Act, while the Sea-Water Fisheries Act 365 in general regulates fishing conducted by Norwegian vessels. 366; 367 However, the latter Act also applies to foreign vessels when it provides authorisations that complement the regulatory measures resulting 362 This geographical division was also used as a basis in the review of the acts and the regulations functional area of application and in the description of freedom of action regarding sanctions/penalty frameworks. 363 Act of 17 December 1976 No. 91 relating to the Economic Zone of Norway. 364 Pursuant to the Economic Zone Act, foreign fishing and hunting activities in the Norwegian Economic Zone are in principle forbidden unless Norwegian authorities give the party involved the right to such fishing. This right is generally granted as a result of agreements with other nations on access to the Norwegian Economic Zone. Every year Norway enters into fisheries agreements that regulate the right to fish and the quotas for Russia, the EU, the Faroe Islands and Greenland. Iceland has the right to fish in the Norwegian Economic Zone according to the agreement of 15 May 1999 between Norway, Iceland and the Russian Federation concerning certain aspects of cooperation in the area of fisheries (the "Loophole Agreement") with an accompanying bilateral protocol between Norway and Iceland. A certain number of vessels from these nations are issued with a fishing licence that allows them to fish in the Norwegian Economic Zone. (Reference: Faktaark [Fact sheets ]), Department of Marine Resources and Environment, Ministry of Fisheries and Coastal Affairs, p. 17). 365 Act of 3 June 1983 No. 40 relating to sea-water fisheries, etc. 366 Faktaark [Fact sheets ], Department of Marine Resources and Environment, Ministry of Fisheries and Coastal Affairs, p In this context the object is to explain the basic acts relating to fishing in the sea. The Participation Act is therefore not discussed here. Norwegian Official Report NOU 2005:10, p. 86, gives a definition of the relationship between the Sea-Water Fisheries Act and the Participation Act: the latter Act provides the right to run commercial fisheries and fishing while the former Act applies on a general basis to fishing in the sea. The report also says that licence legislation is intended to provide favourable framework conditions for participation and access, while resource legislation has resource management as its objective by making provisions for harvesting within the fixed framework conditions. Traditionally, attempts have therefore been made to keep marine resource legislation separate from licence legislation. 155

160 from or pursuant to the Economic Zone Act. 368 In addition, the Coastguard Act 369 is of key importance with regard to control and enforcement in the Norwegian Economic Zone. 370 For the Grey Zone, Norwegian rules have been formulated with a view to accommodating provisions related to the Grey Zone Agreement 371 of 11 January The Fisheries Protection Zone around Svalbard (Fisheries Protection Zone) Under the provisions of the Economic Zone Act, the Fisheries Protection Zone around Svalbard was established on 15 June 1977 through specific regulations the Fisheries Protection Zone Regulations. 372 These regulations authorise the Ministry of Fisheries and Coastal Affairs to lay down more detailed regulatory measures for fishing by both Norwegian and foreign vessels. 373 The Economic Zone Act, the Sea-Water Fisheries Act and the Coastguard Act also apply to the Fisheries Protection Zone in the same way as they do to the Norwegian Economic Zone. 374 However, the Sea-Water Fisheries Act has traditionally not been used to provide regulations for the Norwegian Economic Zone The Fisheries Zone around Jan Mayen (Jan Mayen Zone) Under the provisions of the Economic Zone Act, the Fisheries Zone around Jan Mayen (the Jan Mayen Zone) was established on 29 May 1980 through specific regulations the Jan Mayen Regulations. 376 These regulations also empower the Ministry of Fisheries and Coastal Affairs to lay down more detailed regulatory measures for fishing with both Norwegian and foreign vessels. 377 In addition, the Economic Zone Act, the Sea-Water Fisheries Act and the Coastguard Act apply to the Jan Mayen Zone Waters subject to foreign nations fisheries jurisdiction In cases where there is an agreement on fishing rights, the Norwegian authorities regulate certain aspects of Norwegian vessels fishing in waters subject to foreign nations fisheries jurisdiction through the Sea-Water Fisheries Act International waters The Sea-Water Fisheries Act also applies in international waters to Norwegian vessels that are engaged in fishing or hunting operations, or that receive or transport fish, or that receive 368 Norwegian Official Report NOU 2005:10, p. 79. Pursuant to Section 1, third paragraph, first sentence of the Sea-Water Fisheries Act, Chapters V, VI, VIII, IX and X also apply to foreign vessels. Regulations laid down according to Chapter II of this act also apply when expressly provided, cf. third paragraph, 2nd sentence of the same section. 369 Act of 13 June 1997 No. 42 relating to the Coastguard. 370 See section of this report for a closer description of the Coastguard s authorisations pursuant to the Coastguard Act. 371 Agreement of 11 January 1978 on an Interim Practical Arrangement for Fishing in a Contiguous Area in the Barents Sea. The agreement applies for one year at a time and is renewed each year. 372 Regulations of 3 June 1977 No. 6 relating to a Fisheries Protection Zone around Svalbard. 373 Section 3 of the above regulations. 374 Section 1, first paragraph, litra a) of the Economic Zone Act, Section 1, 2nd sentence of the Sea-Water Fisheries Act, and Section 3, first paragraph, litra b) of the Coastguard Act, respectively. 375 Norwegian Official Report NOU 2005:10, p Regulations of 23 May 1980 No. 4 relating to the establishment of a fisheries zone around Jan Mayen. Delegation of authority. 377 Section 4 of the Jan Mayen Regulations. 378 Section 1, first paragraph litra a) of the Economic Zone Act, Section 1, 2nd sentence of the Sea-Water Fisheries Act and Section 3, first paragraph, litra b) of the Coastguard Act, respectively. 379 Sea-Water Fisheries Act, Section 1, first paragraph litra c). 156

161 or deliver supply and support services. 380 In addition, the Coastguard Act applies outside the Norwegian area of jurisdiction with restrictions according to international law. 381 However, the situation is different for foreign vessels fishing in international waters that adjoin areas under Norwegian fisheries jurisdiction. 382 In accordance with Article 92 of the United Nations Convention on the Law of the Sea, 383 it is in principle only the flag state that can exercise jurisdiction over its own registered vessels, i.e. adopt regulatory measures and take control and enforcement action. If no special agreement has been entered into with the flag state in question, Norway therefore has no general jurisdiction over foreign vessels that are fishing either unlawfully or against regulatory measures on the high seas. 384 An exception to the principle of exclusive flag-state jurisdiction on the high seas is made in the UN agreement of 4 December 1995, to which Norway is a party. This gives a general right to board and inspect fishing vessels of other parties to the agreement on the high seas. Inspections on the high seas of vessels that are not subject to any nation s jurisdiction (stateless vessels) do not represent a violation of the flag-state principle. The Sea-Water Fisheries Act applies to stateless vessels that engage in fishing operations on the high seas Territorial waters The Sea-Water Fisheries Act applies to Norwegian vessels in territorial waters around mainland Norway and Jan Mayen. 386 Pursuant to the Act relating to a prohibition against fishing 387 it is in principle forbidden for foreign vessels to conduct fishing and hunting activities in these waters. 388 Pursuant to the same Act, it is also prohibited for persons who are not Norwegian nationals or on an equal footing with Norwegian nationals to process, pack or trans-ship fish, crustaceans or molluscs or parts or products of these fish and animal species in territorial waters. The prohibition applies to catches from both Norwegian and foreign vessels. 389 In the territorial waters around Svalbard, fishing with both Norwegian and 380 Sea-Water Fisheries Act, Section 1, first paragraph, litra b). 381 Section 3, first paragraph, litra d) of the Coastguard Act. 382 The relevant sea areas are the Barents Sea Loophole and the Norwegian Sea Loophole. 383 The United Nations Convention on the Law of the Sea of 10 December Norwegian Official Report NOU 2005:10, p Section 1, fourth paragraph of the Sea-Water Fisheries Act. This was adopted in connection with the revision of 15 June 2001 of this Act. In the proposition concerning the legislative amendment, Proposition no. 92 to the Odelsting ( ), Norwegian authorities establish that since such vessels cannot legitimately use any nation s flag, this does not contravene the principles concerning flag state jurisdiction according to the United Nations Convention on the Law of the Sea or to other general principles of international law concerning flagstate jurisdiction. It can therefore be claimed that there is a basis in international law for intervening vis-à-vis stateless vessels. However, according to the legality principle, such interventions require Norwegian legislation to impose a ban on the activity of such vessels, and a legal basis must have been established for the ban to be enforced and sanctions imposed on violations of the ban (item 6.1 in the Proposition). 386 Section 1, first paragraph, litra a) of the Sea-Water Fisheries Act 387 Act of 17 June 1966 No. 19 relating to a prohibition against fishing, etc. by foreign nationals in Norway s territorial waters. 388 Act of 17 June 1966 No. 19 relating to a prohibition against fishing, etc. by foreign nationals in Norway s territorial waters, Section 3, first paragraph. 389 Act of 17 June 1966 No. 19 relating to a prohibition against fishing, etc. by foreign nationals in Norway s territorial waters, Section 5, first paragraph. However, for fish caught by Norwegian vessels, the Ministry of Fisheries and Coastal Affairs can make an exception from the prohibition when considerations regarding sales aspects so indicate and when considerations regarding the production at processing plants on land do not contraindicate it, cf. Section 5, third paragraph, 2nd sentence. Permission pursuant to the second sentence can only be granted for the specific case, for a defined fish species, and for a certain period in the fishing season, cf. 3rd sentence of the third paragraph of the same section. Section 5, first paragraph does not however apply to foreign vessels that have a fishing licence for the Jan Mayen Zone, cf. Section 3 of Regulations of 21 December 1999 no relating to fishing and hunting operations by foreign nationals in the Fisheries Zone around Jan Mayen. 157

162 foreign vessels is regulated pursuant to the Svalbard Act. 390 Specific regulations have been laid down pursuant to the above Act 391 which give the Ministry of Fisheries and Coastal Affairs with one exception 392 the same regulatory powers as the Fisheries Protection Zone Regulations. In some delimited areas the Sea-Water Fisheries Act also applies in the territorial waters around Svalbard to both Norwegian and foreign vessels. 393 However, the Sea-Water Fisheries Act has not traditionally been used to authorise regulations for the territorial waters around Svalbard. 394 The Coastguard Act applies in the waters around mainland Norway, Jan Mayen and Svalbard The Norwegian mainland The Sea-Water Fisheries Act applies on the Norwegian mainland to Norwegian nationals and persons resident in Norway with regard to trans-shipping, landing, transporting and storing fish and with regard to controlling the sale of fish. 396 Companies with limited liability are regarded as being on an equal footing with Norwegian nationals when the company s head office and the seat of the Board are in Norway. 397 The Raw Fish Marketing Act 398 and the Regulations relating to first-hand sales of raw fish 399 apply to the sale, processing and export of all catches taken by Norwegian vessels as well as to fish caught by foreign vessels that is landed in Norway. With regard to Norwegian vessels, the Raw Fish Marketing Act applies regardless of where the sale or processing takes place, so that sale on landing abroad or on the sea is also included. The Act does not apply to catches from foreign vessels until they have been landed. 400 In addition, the Act relating to registration as a fish buyer 401 and appurtenant regulations represent key legislation for the first-hand sale of fish in Norway Functional area of application for Norwegian acts and regulations related to fisheries 1. The Norwegian Economic Zone The basic regulations that apply to fishing with foreign vessels in the Norwegian Economic Zone are the Regulations relating to fishing and hunting operations by foreign nationals in 390 Actof 17 July 1925 No. 11 relating to Svalbard. 391 Regulations of 28 April 1978 No. 20 relating to regulatory measures for fishing in the territorial and internal waters of Svalbard. 392 Section 3, no. 4 of the Fisheries Protection Zone Regulations concerning which nations vessels have the right to conduct fishing operations. 393 Penal provisions and procedural rules in Section 53, third paragraph, 2nd sentence, 4 th and fifth paragraphs, and Section 54 of the Sea-Water Fisheries Act, cf. Section 4, third paragraph of the Svalbard Act, and provisions in Chapter V relating to rules on the fishing grounds etc., Chapter VI relating to saving equipment, and Chapter VIII relating to compensation, cf. regulations of 6 June 1997 no. 569 relating to rules for maintaining order, etc., in the territorial and internal waters of Svalbard. 394 Norwegian Official Report NOU 2005:10, p Section 3, first paragraph, litra a) of the Coastguard Act. 396 Section 1, first paragraph, litra d) of the Sea-Water Fisheries Act. 397 Section 1, second paragraph, litra a) of the Sea-Water Fisheries Act. 398 Act of 14 December 1951 No. 3 relating to the marketing of raw fish. 399 Regulations of 29 June 1990 No. 485 relating to first-hand sales of raw fish. 400 Section 2, second paragraph of the Raw Fish Marketing Act, and Section 1 of the Regulations relating to first-hand sales of raw fish. 401 Act of 24 June 1994 no. 34 relating to registration as a first-hand buyer of raw fish, etc. 158

163 the Economic Zone of Norway 402, which have been adopted with legal basis in the Economic Zone Act. In addition to laying down provisions on such aspects as fishing licences, reporting and catch logbooks, these regulations also authorise the Ministry of Fisheries and Coastal Affairs and the Directorate of Fisheries to adopt supplementary regulations and provisions. 403 Central among these supplementary regulations and provisions are the regulations that are adopted each year for the countries with which Norway has entered into an agreement. These regulations primarily set the quota sizes and by-catch provisions as well as other relevant provisions related to the areas and/or stocks for which permission to fish in/for has been granted. Under the provisions of the Economic Zone Act, the Jan Mayen Regulations and the Sea-Water Fisheries Act, specific regulations have also been adopted on the satellite monitoring of foreign vessels over a given size. 404 With regard to Norwegian vessels fishing in the Norwegian Economic Zone, regulations for regulatory measures are similarly adopted each year pursuant to the provisions of the Sea- Water Fisheries Act. They include provisions on the distribution of quotas to different groups of vessels, the distribution of quotas at vessel level, the allocation of fishing periods, by-catch provisions etc. 405 Fishing licences for individual vessels are regulated through annual participant regulations or through licence regulations 406 that are laid down or have been laid down pursuant to the Participation Act. 407 Reporting and satellite-tracking provisions for Norwegian fishing vessels are incorporated into the Regulations relating to the duty to report catch data 408, the Regulations relating to the reporting of catches 409 and the Regulations 402 Regulations of 13 May 1977 No. 2 relating to fishing and hunting operations by foreign nationals in the Economic Zone of Norway. 403 Section 13 of the above regulations. 404 Regulations of 16 December 1999 No relating to satellite-based monitoring of the activities of foreign shipping vessels in the internal waters, territorial sea and Economic Zone of Norway and the Fisheries Zone around Jan Mayen. Section 1 of the regulations defines the countries and vessels to which the regulations apply: The regulations apply to fishing vessels above 24 metres total length flying the flag of Russia, the Faroe Islands, Greenland and Iceland and to fishing vessels above 18 metres total length flying the flag of a European Union Member State and that are in the internal waters, territorial sea and the Economic Zone of Norway or in the Fisheries Zone around Jan Mayen. From 1 January 2005, the regulations also apply to fishing vessels above 15 metres total length flying the flag of a European Union Member State and that are in the area mentioned in the first sentence. The term fishing vessels here means vessels of any type that are equipped for or engaged in commercial fishing operations or vessels that assist the fishing fleet, including transport vessels to which catches are transhipped. 405 Faktaark [Fact sheets ], Department of Marine Resources and Environment, Ministry of Fisheries and Coastal Affairs, p The regulations that apply are regulations of 13 October 2006 No relating to special licences for certain types of fishing and hunting. These came into force on the same date as they were established, and replaced the licence regulations relating to fishing using trawls or purse seines, trawling for shrimps, and purse seining for saithe of 12 December 1986, 2 March 1979, 29 June 1984 and 8 March 1974, respectively. 407 Act of 26 March 1999 No. 15 relating to the right to participate in fishing and hunting. 408 Regulations of 26 July 1993 No. 772 relating to the duty of fishing and hunting vessels to report catch data. These regulations replace regulations of 10 October 1989 No relating to the submission of reports by fishing and hunting vessels. 409 Regulationsof 16 February 2005 No. 151 relating to the reporting of catches by Norwegian vessels. In accordance with Section 1, first paragraph of the regulations, these apply to Norwegian vessels with a codtrawling licence, Norwegian vessels with a beam-trawling licence that fish in defined areas, and Norwegian vessels that undertake trans-shipment. These regulations replace the previous regulations of 16 January 1989 No. 16 relating to the reporting of catches, etc. by cod trawlers that can process the catch on board, and regulations of 7 March 1997 no. 201 relating to the duty ofvessels with a beam-trawling licence to provide reports. 159

164 relating to satellite-based monitoring 410 all of which have been adopted under the provisions of the Sea-Water Fisheries Act. The above regulations concerning regulatory measures, fishing licences, reporting and tracking are supplemented by the Regulations relating to sea-water fisheries. 411 These are the most exhaustive regulations with regard to actual fishing operations conducted by both Norwegian and foreign vessels in the Norwegian Economic Zone and in other areas. The regulations, which have primarily been adopted pursuant to the Sea-Water Fisheries Act, the Economic Zone Act, and the Regulations relating to fishing and hunting operations by foreign nationals in the Economic Zone of Norway, contain provisions that are intended to encompass all the various technical aspects of fishing. They include provisions related to the design and size of mesh in trawls, Danish seines and gill nets, to restrictions on the use of these tools and other gear, to the selectivity of trawls and Danish seines, to closed seasons, to by-catches, to minimum fish size, to prohibitions against discarding fish, to a ban on trawling in specific periods and in certain areas etc. A separate and important element of the technical regulatory provisions is the conversion factors, which are intended to establish the ratio between the weight of the individual ungutted fish (the round weight ) and the weight of a more closely defined processed product of the fish for all relevant fish species and fish products. Special regulations have been established in this respect, the Regulations relating to conversion factors 412, and these apply to both Norwegian and foreign vessels. A final key element of the technical regulatory measures in the Norwegian Economic Zone is the authority of the Directorate of Fisheries pursuant to Section 47 of the Regulations relating to sea-water fisheries to forbid the fishing of shrimp, cod, haddock, saithe and Greenland halibut below the minimum size, as well as redfish under 32 cm, in certain areas north of 62 N. While Norway and Russia are in the process of negotiating a dividing line in the Barents Sea, a temporary fishing arrangement is in force entered into through the previously-mentioned Grey Zone Agreement, which applies for one year at a time and is renewed annually. Under the provisions of the Economic Zone Act and the Regulations relating to fishing and hunting operations by foreign nationals in the Economic Zone of Norway, specific regulations have been established on fishing in the Grey Zone by foreign vessels that have a Norwegian fishing licence. 413 According to these regulations, the Regulations relating to fishing and hunting operations by foreign nationals in the Economic Zone of Norway also apply in the 410 Regulations of 7 April 1999 No. 387 relating to satellite-based monitoring of the activities of fishing and hunting vessels. In the Norwegian Economic Zone the regulations apply to all Norwegian fishing and hunting vessels over 24 metres total length, cf. Section 2 of the regulations. The definition of fishing and hunting vessels is the same as that for foreign vessels and is given in Section 1 of the regulations. 411 Regulations of 22 December 2004 No relating to sea-water fisheries. When these regulations came into force on 1 January 2005, they replaced a number of regulations that together had covered the same areas previously. The most important of these are regulations of 10 October 1989 No relating to mesh size, bycatches, closed seasons and minimum sizes, etc. during fishing operations for herring and other fish. 412 Regulations of 7 November 1994 No. 989 relating to conversion factors from product weight to round weight. These regulations were established pursuant to the Sea-Water Fisheries Act, the Economic Zone Act, the Regulations relating to fishing and hunting operations by foreign nationals in the Economic Zone of Norway, the Fisheries Protection Zone Regulations and the Regulations relating to regulatory measures for fishing in the territorial and internal waters of Svalbard. 413 Regulations of 11 January 1978 No. 5 relating to fishing and hunting operations by foreign nationals in an adjacent area of the Barents Sea bordering on the mainland coasts of Norway and Russia. 160

165 Grey Zone to the relevant vessels with the exception of the provisions on catch logbooks and stowage requirements. 414 These regulations also state that if the provisions on foreigners fishing operations that concern regulating fishing gear and establishing minimum mesh size and minimum fish sizes are not in accordance with the regulatory measures recommended by the North East Atlantic Fisheries Commission (NEAFC), the NEAFC's recommendations are to apply. 415 The other regulations concerning regulatory measures, fishing licences, reporting and tracking mentioned above that are in force for foreign vessels in the Norwegian Economic Zone also apply to the relevant foreign vessels in the Grey Zone. For Norwegian vessels, the regulations mentioned above apply in the same way in the Grey Zone as they do in the Norwegian Economic Zone. 2. The Fisheries Protection Zone around Svalbard (Fisheries Protection Zone) The basic regulations that apply to fishing with both Norwegian and foreign vessels in the Fisheries Protection Zone are the Regulations relating to regulatory measures for fishing in the Fisheries Protection Zone 416 adopted pursuant to the provisions in the Economic Zone Act and the Fisheries Protection Zone Regulations. The provisions in the regulations primarily address the different forms of reporting related to the conducting of the actual fishing, trans-shipment and port calls, keeping a catch logbook and facilitating control and inspection. To a large extent these regulations are supplemented by those on mesh size, bycatches and minimum sizes etc. for fishing in the Fisheries Protection Zone 417 which have been adopted with legal basis in the Fisheries Protection Zone Regulations. In keeping with the Regulations relating to sea-water fisheries, the regulations relating to mesh size, bycatches and minimum sizes contain provisions that are intended to cover all the various technical aspects of fishing conducted by Norwegian and foreign vessels in the Fisheries Protection Zone. Since the latter regulations cover fewer fisheries than the former with regard to both species of fish and types of fishing they therefore have a more limited scope. Under the provisions of the Economic Zone Act and the Fisheries Protection Zone Regulations, specific regulations have also been adopted on satellite-based monitoring 418 for the Fisheries Protection Zone. These apply to both Norwegian and foreign vessels. In the same way as for the Norwegian Economic Zone, the Directorate of Fisheries has been authorised 419 by the Ministry of Fisheries and Coastal Affairs to lay down prohibitions against fishing in more closely defined areas in the Fisheries Protection Zone in order to protect the development of young fish and to ensure recruitment to the stocks. 420 Fishing for specific stocks including the protection of the stocks that require it is also governed by specific regulations with their legal basis in the Economic Zone Act and the Fisheries Protection Zone Regulations. Most of these regulations are renewed annually. 414 Section 4 of the above regulations. 415 Section 4 of the above regulations. 416 Regulations of 21 September 1994 No. 880 relating to regulatory measures for fishing in the Fisheries Protection Zone around Svalbard. 417 Regulations of 21 September 1994 No. 881 relating to mesh size, bycatches and minimum sizes, etc. in fishing operations in the Fisheries Protection Zone around Svalbard. 418 Regulations of 26 March 2003 No. 405 relating to satellite-based monitoring of the activities of fishing and hunting vessels in the Fisheries Protection Zone around Svalbard. 419 Regulations of 1 September 1999 No relating to delegation of the authority of the Ministry of Fisheriespursuant to section 3(1) of the Regulations relating to a Fisheries Protection Zone around Svalbard and section 1(1) of the Regulations relating to regulatory measures for fishing in the territorial and internal waters of Svalbard. 420 Section 1 of the regulations of 1 September 1999 no

166 Within ordinary fishing operations, regulations have so far been adopted for the fishing of shrimp, cod, redfish, Greenland halibut, capelin and herring in the Fisheries Protection Zone. 421 These regulations cover both Norwegian and foreign vessels. The Regulations relating to conversion factors apply in the same way to both Norwegian and foreign vessels in the Fisheries Protection Zone as they do in the Norwegian Economic Zone. 422 For Norwegian vessels, the Regulations relating to sea-water fisheries as well as the Regulations relating to the duty to report catch data, the Regulations relating to the reporting of catches, and the Regulations relating to satellite-based monitoring apply in the same way in the Fisheries Protection Zone as they do in the Norwegian Economic Zone The Fisheries Zone around Jan Mayen (Jan Mayen Zone) The basic regulations that apply to fishing with foreign vessels in the Fisheries Zone around Jan Mayen are the Regulations relating to fishing and hunting operations by foreign nationals in the Fisheries Zone around Jan Mayen. 424 These regulations have primarily been adopted pursuant to the Economic Zone Act and the Jan Mayen Regulations. With a few exceptions, the regulations are almost identical to those for foreign nationals fishing and hunting in the Norwegian Economic Zone. If it is laid down in any quota agreement(s) that Norway has entered into with the country in question 425, fishing rights for foreign vessels in the Jan Mayen Zone will be included in the annual regulations on regulatory measures that also apply to the Norwegian Economic Zone. The Regulations relating to satellite-based monitoring of the activities of foreign shipping vessels also apply to the Jan Mayen Zone. For Norwegian vessels, fishing rights in the Jan Mayen Zone are regulated pursuant to separate regulations relating to regulatory measures whose legal base is in the provisions of the Sea-Water Fisheries Act and if relevant the Participation Act. 426 The Regulations relating to the duty to report catch data, the Regulations relating to the reporting of catches, and the Regulations relating to satellite-based monitoring apply to Norwegian vessels in the Jan Mayen Zone in the same way as they do in the Norwegian Economic Zone. 427 The Regulations relating to sea-water fisheries and the Regulations relating to conversion factors apply to both Norwegian and foreign vessels in the Jan Mayen Zone in the same way as they do in the Norwegian Economic Zone In addition there are separate regulations, of 10 January 1989 No. 12 relating to regulation of the catch of Iceland scallop (Chlamys islandica) in the Fisheries Protection Zone around Svalbard. 422 Section 1 of the Conversion Factor Regulations. 423 Section 1 of the Regulations relating to sea-water fisheries, Section 1 of the Regulations relating to the duty to report catch data, Section 1 of the Regulations relating to the reporting of catches, and Section 1 of the Regulations relating to satellite-based monitoring. 424 Regulations of 21 December 1999 No relating to fishing and hunting operations by foreign nationals in the Fisheries Zone around Jan Mayen. 425 In general this concerns Russia, the EU and the Faroe Islands. 426 This primarily concerns the regulation of fishing for capelin, Norwegian spring-spawning herring and blue whiting. 427 Section 1 of the Regulations relating to the duty to report catch data, Section 1 of the Regulations relating to the reporting of catches, and Section 1 of the Regulations relating to satellite-based monitoring. 428 Section 1 (3) and (4) of the Regulations relating to sea-water fisheries, and Section 1 of the Regulations relating to conversion factors. 162

167 4. Waters subject to foreign nations fisheries jurisdiction Any fishing rights based on agreements with other nations are indicated in the annual regulations relating to regulatory measures that are adopted under the provisions of the Sea- Water Fisheries Act and the Participation Act. The Regulations relating to conversion factors, the Regulations relating to the duty to report catch data, the Regulations relating to the reporting of catches, and the Regulations relating to satellite-based monitoring apply to Norwegian vessels in waters that are subject to foreign nations fisheries jurisdiction in the same way as they do in the Norwegian Economic Zone 429 in addition to other rules drawn up by the nation that exercises the fisheries jurisdiction in the area in question. 5. International waters The general regulations on fishing with Norwegian vessels in international waters are the Regulations relating to the regulation of fisheries in waters outside the fisheries jurisdiction of any state 430 adopted pursuant to the provisions of the Participation Act and the Sea-Water Fisheries Act. These regulations state that a basic requirement is that the vessel in question must have a fishing licence issued by the Directorate of Fisheries before it can fish in international waters. At the same time, the regulations give the Directorate of Fisheries the authority to refuse or to annul the registration of vessels on more closely defined conditions. The regulations also lay down the obligations of Norwegian vessels fishing in international waters to report and to submit information, and specific regulations have also been adopted that establish more detailed provisions on registering and reporting when fishing in international waters. 431 Unless specifically stated otherwise, the Regulations relating to sea-water fisheries, the Regulations relating to conversion factors, the Regulations relating to the duty to report catch data, the Regulations relating to the reporting of catches, and the Regulations relating to satellite-based monitoring apply in international waters in the same way as they do in the Norwegian Economic Zone. 432 With regard to the annual regulations relating to regulatory measures for Norwegian vessels, the individual regulation will indicate whether it allows parts of the quota or the whole quota to be taken in international waters. As mentioned above, the Sea-Water Fisheries Act also applies to a certain extent to stateless vessels that conduct fishing and hunting operations on the high seas. 6. Territorial waters For Norwegian vessels, the annual regulations on regulatory measures indicate whether rights have been granted including for the respective vessel groups to fish in the 429 Section 1 of the Regulations relating to conversion factors, Section 1 of the Regulations relating to the duty to report catch data, Section 1 of the Regulations relating to the reporting of catches, and Section 1 of the Regulations relating to satellite-based monitoring. 430 Regulations of 4 March 1998 No. 173 relating to the regulation of fisheries in waters outside the fisheries jurisdiction of any state. 431 Regulations of 30 June 1999 No relating to registering and reporting during fishing operations in waters outside the fisheries jurisdiction of any state, adopted pursuant to the provisions in regulations of 4 March 1998 No Section 1 (3) of theregulations relating to sea-water fisheries, Section 1 of the Regulations relating to conversion factors, Section 1 of the Regulations relating to the duty to report catch data, Section 1 of the Regulations relating to the reporting of catches, and Section 1 of the Regulations relating to satellite-based monitoring. 163

168 territorial waters around mainland Norway and Jan Mayen. The Regulations relating to seawater fisheries as well as the Regulations relating to conversion factors, the Regulations relating to the duty to report catch data, the Regulations relating to the reporting of catches, and to the Regulations relating to satellite-based monitoring apply in the same way for Norwegian vessels in these waters as they do in the Norwegian Economic Zone. 433 As mentioned above, it is forbidden for foreign vessels to conduct fishing or hunting operations in these waters. The basic regulations for both Norwegian and foreign vessels in the territorial waters around Svalbard are the Regulations relating to regulatory measures for fishing in the territorial and internal waters of Svalbard. They give the Ministry of Fisheries and Coastal Affairs regulatory powers in a number of areas including to lay down the following: a ban on fishing in specified areas, provisions on regulating gear and on minimum fish sizes, the largest annual permitted catch volume and the fishing effort for each individual fish species, provisions on mesh size, the dimensions and design of fishing gear, provisions on permitted by-catches, provisions concerning equipment for monitoring, reporting and position determination, and provisions on the submission of information and the obligation to report. Pursuant to the provisions in these regulations and in the Svalbard Act, specific regulations have been adopted 434 that also apply to both Norwegian and foreign vessels. With a few exceptions these are almost identical to the corresponding regulations for the Fisheries Protection Zone. In addition, special regulations have been established on satellite-based monitoring 435 and reporting and control 436 in the territorial waters around Svalbard pursuant to the Regulations relating to regulatory measures for fishing in the territorial and internal waters of Svalbard and the Svalbard Act (the regulations relating to satellite-based monitoring only) that also apply to both Norwegian and foreign vessels. In accordance with the delegation of authority corresponding to that for the Fisheries Protection Zone, the Directorate of Fisheries also has the authority to prohibit fishing in more closely defined areas in the territorial waters around Svalbard in order to protect the development of young fish and to ensure recruitment to stocks. 437 Fishing for specific stocks including the protection of the stocks that require it is also governed by specific regulations pursuant to the provisions of the Regulations relating to regulatory measures for fishing in the territorial and internal waters of Svalbard and, if appropriate, the Svalbard Act and the Economic Zone Act. Regulations have so far been adopted for fishing shrimp, redfish, Greenland halibut, capelin and herring in these waters. These regulations apply to both Norwegian and foreign vessels. 433 Section 1 (3) of theregulations relating to sea-water fisheries, Section 1 of the Regulations relating to conversion factors, Section 1 of the Regulations relating to the duty to report catch data, Section 1 of the Regulations relating to the reporting of catches, and Section 1 of the Regulations relating to satellite-based monitoring. 434 Regulations of 21 September 1994 No. 882 relating to mesh size, bycatches and minimum sizes, etc. in fishing operations in the territorial and internal waters of Svalbard. 435 Regulations of 26 March 2003 No. 406 relating to satellite-based monitoring of the activities of fishing and hunting vessels in the territorial and internal waters of Svalbard. 436 Regulations of 17 March 2005 No. 237 relating to reporting and control when fishing in the territorial and internal waters of Svalbard. 437 Section 1 of regulations of 1 September 1999 No

169 The Regulations relating to conversion factors apply to both Norwegian and foreign vessels in the territorial waters around Svalbard in the same way as they do in the Norwegian Economic Zone. 438 For Norwegian vessels, the Regulations relating to sea-water fisheries, the Regulations relating to the duty to report catch data, the Regulations relating to the reporting of catches, and the Regulations relating to satellite-based monitoring, apply in the territorial waters around Svalbard in the same way as they do in the Norwegian Economic Zone The Norwegian mainland Pursuant to the Regulations relating to the duty to provide information on the landing and sale of fish, all vessels that land and receive catches in Norway have certain obligations. The regulations apply to the landing of fish from Norwegian vessels, and cover any party that receives or buys such fish 440 as well as all cases in which fish is landed from foreign vessels, including the landing of fish that is handled according to the rules on customs warehousing or transit through Norway. 441 The term landing in the regulations also covers all cases in which fish is transferred from one vessel to another. The regulations also contain provisions on the obligation to weigh fish, information on landing, information on sale, how the information is to be given, and on labelling and traceability. Pursuant to the Raw Fish Marketing Act and appurtenant regulations, it is forbidden to process, sell or fish several species if they are not sold at first hand through or with the approval of recognised sales organisations. 442 The marine species that are included are exhaustively listed in the Regulations relating to first-hand sales of raw fish, which also lay down more detailed rules on sale, both at sea and on land, as well as on the sale of certain species. The Act and Regulations relating to the registration as a fish buyer 443 stipulate the obligation for buyers to be registered in order to be able to buy fish first hand. The regulations apply to first-hand buyers of raw fish etc. who are covered by the Raw Fish Marketing Act. 444 These regulations include provisions on the terms for registration as a fish buyer, on the annulment of registration as a fish buyer on any breach of the terms or of other duties pursuant to the regulations, and on the supervisory powers of the Directorate of Fisheries Description of freedom of action with regard to sanctions/penalty frameworks General information on expiry of limitation periods Pursuant to Section 67 of the General Civil Penal Code 445 the period of limitation the prescription term is five years when the maximum statutory penalty is imprisonment for 438 Section 1 of the Regulations relating to conversion factors. 439 Section 1 (3) of the Regulations relating to sea-water fisheries and Section 1 of the Regulations relating to the duty to report catch data, Section 1 of the Regulations relating to the reporting of catches, and Section 1 of the Regulations relating to satellite-based monitoring. 440 Section 2, first paragraph of the Regulations relating to the duty to provide information. 441 Section 2, second paragraph of the Regulations relating to the duty to provide information. 442 Cf. Section 1, paragraphs 1 and 2 of the Regulations. 443 Regulations of 19 September 1997 No relating to registration as a first-hand buyer of raw fish, etc. 444 Section 1 of the Regulations relating to registration as a fish buyer. These apply with the exception of buyers who are not subject to the obligation to register in the Central Coordinating Register for Legal Entities, cf. Act of 3 June 1994 No. 15 relating to the Central Coordinating Register for Legal Entities. 445 General Civil Penal Code, Act of 22 May 1902 No

170 up to four years (i.e. from one to four years), and two years when the maximum statutory penalty is a fine or imprisonment for up to one year. 1. The Norwegian Economic Zone The main penal provisions for Norwegian fishermen are laid down in Section 53, first paragraph of the Sea-Water Fisheries Act and in Section 31 of the Participation Act. 446 The main rule in Section 53, first paragraph is that any person who wilfully or negligently contravenes or is an accessory to the contravention of any provisions set out in or pursuant to the Act is liable to a fine or to imprisonment for a term of up to six months unless more severe penal provisions are relevant. The second sentence of this provision states that under particularly aggravating circumstances a term of imprisonment of up to two years can be imposed. In accordance with Section 26 of the Penal Code, the imprisonment penalty can be imposed alone or together with a fine. Attempts are subject to the same penalty as a completed offence, and contraventions are regarded as misdemeanours, cf. Section 53, third paragraph of the Sea-Water Fisheries Act. The fifth paragraph of Section 53 states that if the contravention has been committed by any member of the crew of a vessel, and criminal liability may be brought to bear on the master of the vessel (the captain) in this connection, the subordinate may not be penalised The master of the vessel may accept a penalty notice on behalf of the employer, and an employer may also be liable to a penalty in criminal proceedings against the master, cf. Section 53, fourth paragraph. A penalty may also be imposed on the employer if this party is a legal entity, cf. Chapter 3 of the Penal Code on penalty liability for enterprises. 447 The first paragraph of Section 31 of the Participation Act states that any person who wilfully or negligently contravenes provisions set out in or pursuant to this Act is liable to a fine. If the offender has previously been sentenced according to the same Act, or if there are other aggravating circumstances, a term of imprisonment of up to six months can be imposed, either alone or together with a fine. The second paragraph of the same section states that complicity or attempts at contravention are subject to the same penalty. On contraventions of provisions set out in or pursuant to the Sea-Water Fisheries Act, the vessel used in the contravention and its fittings, any catches and gear on board may be confiscated, irrespective of who the owner is. Instead of confiscating the vessel, catch, gear etc., the value thereof may be confiscated wholly or in part from the offender or from the person on whose behalf he has acted, or from the owner. When lawful and unlawful catches have been mixed together, the entire catch may be confiscated. In addition to Section 53 of the Sea-Water Fisheries Act, the main penal provisions for foreign vessels are Sections 8 and 9 of the Economic Zone Act. Section 8 states that anyone intentionally or negligently violating the provisions of this Act, or aiding and abetting such violation, is to be punished by fines. Attempted violations are subject to the same penalty as a completed contravention, cf. the second paragraph of the same section. In addition, provisions corresponding to those in paragraphs 4 and 5 of Section 53 of the Sea-Water Fisheries Act are laid down in the Economic Zone Act. 446 Cf. description of facts from the Directorate of Fisheries of 26 October Norwegian Official Report NOU 2005:10, p

171 Section 9 of the Economic Zone Act provides authorisation for the confiscation of foreign vessels pursuant to criminal procedure legislation. This corresponds to the authority applicable to Norwegian vessels in Section 54 of the Sea-Water Fisheries Act However, the second paragraph of Section 53 of the Sea-Water Fisheries Act lays down a special rule for foreign vessels. Imprisonment is not applicable in cases of contraventions committed by foreign vessels outside the territorial sea not even as an alternative penalty if the fine is not paid. Nonetheless, imprisonment can be used for foreign fishermen if it is so stated in any agreement with the foreign nation or if the vessel is stateless. The fact that imprisonment cannot as a general rule be imposed for contraventions committed by foreign vessels outside the territorial sea but within the boundaries of Norwegian fisheries jurisdiction follows from Article 73 no. 3 of the United Nations Convention on the Law of the Sea. 448 The various regulations for regulatory measures and sea-water fisheries for Norwegian and/or foreign vessels described above (the Regulations relating to sea-water fisheries, the Regulations relating to fishing and hunting operations by foreign nationals in the Economic Zone of Norway, the annual regulations for regulatory measures and for participation rights etc.) all refer to the relevant penal provisions in the Participation Act (Norwegian vessels only), the Sea-Water Fisheries Act and/or the Economic Zone Act, including any provisions on confiscation pursuant to criminal procedure legislation. 449 In addition, Section 36 of the Coastguard Act provides a legal basis for imposing penalties. This section sanctions penalties for Norwegian and foreign vessels that in different ways prevent the Coastguard from conducting its work. 450 As a rule there are penalties of fines or imprisonment for up to six months, cf. the first paragraph. Under particularly aggravating circumstances, imprisonment for a term of up to two years can be imposed, cf. the second paragraph of the same section. Persons who are accessories to such action are subject to the same penalty, cf. the third paragraph of the same section. However, imprisonment is not imposed when international law stipulates that the contravention can only be punished by fines, cf. the fourth paragraph of the same section. Contraventions are regarded as misdemeanours, and attempts are subject to the same penalty as a completed offence, cf. the fifth paragraph of the same section. The master of the vessel may accept a penalty notice on behalf of the employer, and an employer may also be liable to a penalty, confiscation and litigation costs for criminal proceedings against the master of the vessel, cf. the sixth paragraph of the same section. If the contravention has been committed by a member of the crew of a vessel, and criminal liability may be brought to bear on the master of the vessel in this connection, the subordinate is not liable to a penalty, cf. paragraph 7 of the same section. However, the penal provisions in Section 36 do not apply if stricter penal provisions are relevant, cf. paragraph 8 of the same section. The fisheries authorities also have certain options of applying so-called administrative sanctions to Norwegian vessels that contravene the fisheries regulations. These include 448 Norwegian Official Report NOU 2005:10, p In their penal provisions in Section 92, the Regulations relating to sea-water fisheries have a reference to the penal provision in Section 31 of Act of 20 December 1974 No. 73 relating to animal welfare. 450 The following are specifically listed in Section 36, first paragraph, of the Coastguard Act: a) failing to obey orders given by the Coastguard; b) failing to give the assistance required; c) failing to provide the necessary information; d) submitting incorrect documents; e) giving incorrect information; f) seeking by other means to mislead the Coastguard; g) destroying evidence by damaging or abandoning a vessel, fixtures or gear. 167

172 rejecting applications for or retracting permits for commercial activities, cf. Section 7, first paragraph, litra c), Section 11, second paragraph e), Section 11, third paragraph, and Section 18 of the Participation Act; and the imposing of a contravention fine, cf. Section 28 of this Act. 451 With the exception of Russian vessels, the penal provisions in the following Acts apply to the Grey Zone in the same way as they do to the Norwegian Economic Zone for Norwegian vessels and/or foreign vessels without a Russian fishing licence: the Participation Act, the Sea-Water Fisheries Act, the Economic Zone Act, and the Coastguard Act, including any legal basis for confiscation pursuant to criminal procedure legislation. 452 The fisheries authorities legal basis for administrative sanctions against Norwegian vessels that have contravened the fisheries regulations applies to the Grey Zone in the same way as it does to the Norwegian Economic Zone The Fisheries Protection Zone around Svalbard (Fisheries Protection Zone) The penal provisions in the Participation Act, the Sea-Water Fisheries Act, the Economic Zone Act and the Coastguard Act, including any legal basis for confiscation pursuant to criminal procedure legislation, apply in the Fisheries Protection Zone in the same way as they do in the Norwegian Economic Zone to Norwegian vessels and/or foreign vessels. 454 The fisheries authorities legal basis for administrative sanctions against Norwegian vessels that have contravened the fisheries regulations applies to the Fisheries Protection Zone in the same way as it does for the Norwegian Economic Zone The Fisheries Zone around Jan Mayen (Jan Mayen Zone) The penal provisions in the Participation Act, the Sea-Water Fisheries Act, the Economic Zone Act and the Coastguard Act, including any authorisation for confiscation pursuant to criminal procedure legislation, apply in the same way to the Jan Mayen Zone as they do to the Norwegian Economic Zone for Norwegian vessels and/or foreign vessels. 456 The various regulations for regulatory measures and sea-water fisheries for Norwegian and/or foreign vessels described above refer to the relevant penal provisions in the Participation Act, the Sea-Water Fisheries Act and/or the Economic Zone Act, including any provisions on confiscation pursuant to criminal procedure legislation, in the same way as they do to the Norwegian Economic Zone. 451 See section of this report for a more detailed description. 452 Section 2 of the Participation Act, Section 1, first paragraph, litra a) of the Sea-Water Fisheries Act, Section 1, second sentence of the Economic Zone Act, and Section 3, first paragraph, litra b) of the Coastguard Act, respectively. 453 Section 2 of the Participation Act. 454 Section 2 of the Participation Act, Section 1, first paragraph, litra a) of the Sea-Water Fisheries Act, Section 1, second sentence of the Economic Zone Act, and Section 3, first paragraph, litra b) of the Coastguard Act, respectively. 455 Section 2 of the Participation Act. 456 Section 2 of the Participation Act, Section 1, first paragraph, litra a) of the Sea-Water Fisheries Act, Section 1, second sentence of the Economic Zone Act, and Section 3, first paragraph, litra b) of the Coastguard Act, respectively.. 168

173 The fisheries authorities legal basis for administrative sanctions against Norwegian vessels that have contravened the fisheries regulations applies to the Jan Mayen Zone in the same way as it does to the Norwegian Economic Zone Waters subject to foreign nations fisheries jurisdiction In addition to the coastal state s own penal provisions, the penal provisions in the Participation Act and the Sea-Water Fisheries Act, including any legal base for confiscation pursuant to criminal procedure legislation, apply to waters subject to foreign nations fisheries jurisdiction in the same way as they do to the Norwegian Economic Zone for Norwegian vessels. 458 The various regulations for regulatory measures and sea-water fisheries described above, which also apply to Norwegian vessels fishing in such waters, refer to the relevant penal provisions in the Participation Act and/or the Sea-Water Fisheries Act, including any provisions on confiscation pursuant to criminal procedure legislation, in the same way as they do to the Norwegian Economic Zone. The fisheries authorities legal basis for administrative sanctions against Norwegian vessels that have contravened the fisheries regulations applies to fishing in waters that are subject to foreign nations fisheries jurisdiction in the same way as it does to the Norwegian Economic Zone International waters The penal provisions in the Participation Act and in the Sea-Water Fisheries Act, including any legal basis for confiscation pursuant to criminal procedure legislation, apply to international waters in the same way as they do to the Norwegian Economic Zone for Norwegian vessels. 460 The various regulations for regulatory measures and sea-water fisheries described above, which also apply to Norwegian vessels fishing in international waters, refer to the relevant penal provisions in the Participation Act and/or the Sea-Water Fisheries Act, including any provisions on confiscation pursuant to criminal procedure legislation, in the same way as they do to the Norwegian Economic Zone. The penal provisions in the Coastguard Act also apply in international waters, with the restrictions following from international law. 461 Moreover, the penal provisions in Chapter X of the Sea-Water Fisheries Act apply to stateless vessels that conduct fishing or hunting activities on the high seas. 462 For foreign vessels there is also a prohibition carrying sanctions in the Regulations relating to prohibitions against landings of fish 463 against the landing of certain types of catch taken by foreign vessels outside Norwegian fisheries jurisdiction. This includes catches that consist of: a) [ ] fish from stocks of joint interest to Norway and other states that are not subject to agreed stock regulation measures or that are subject to Norwegian regulatory measures 464 ; b) [ ] catches taken in contravention of a desired harvesting pattern or that may result in 457 Section 2 of the Participation Act. 458 Section 2 of the Participation Act, and Section 1, first paragraph, litra c) of the Sea-Water Fisheries Act, respectively. 459 Section 2 of the Participation Act. 460 Section 2 of the Participation Act, and Section 1, first paragraph, litra b) of the Sea-Water Fisheries Act, respectively. 461 Section 3, first paragraph d) of the Coastguard Act. 462 Section 1, fourth paragraph of the Sea-Water Fisheries Act 463 Regulations of 6 August 1993 No. 802 relating to prohibitions against landings of fishadopted pursuant to the Act relating to a prohibition against fishing. 464 Section 2, first paragraph of the regulations relating to prohibitions against landing of fish. 169

174 reasonable total allowable catches of the fish species in question being exceeded 465 ; c) [ ] fish caught in contravention of provisions laid down by regional or sub-regional fisheries management organisations or arrangements, including catches taken by nationals of states that are not member of or parties to such organisations or arrangements. 466 These regulations refer to the penal and confiscatory provisions in Sections 10 and 11 of the Act relating to a prohibition against fishing. In addition, the Directorate of Fisheries has legal authority through Section 6 of the Regulations relating to fishing and hunting operations by foreign nationals in the Economic Zone of Norway and the Fisheries Zone around Jan Mayen for administrative sanctions against foreign vessels, more specifically the right to deny or withdraw the licence to fish in these zones when: a) [ ] the vessel s owner, master or crew have contravened the provisions relating to fishing and hunting operations or the conditions prescribed in a licence granted, or if the vessel has been used in connection with such a contravention; b) [ ] the vessel or the owner of the vessel has either taken part in fishing outside quota arrangements in international waters for a stock which is subject to regulation in waters under Norwegian fisheries jurisdiction, or taken part in fishing operations that contravene regulatory measures laid down by regional or sub-regional fisheries management organisations or arrangements. 467 The fisheries authorities legal basis for administrative sanctions against Norwegian vessels that have contravened the fisheries regulations applies in international waters in the same way as it does in the Norwegian Economic Zone Territorial waters The penal provisions in the Participation Act and the Sea-Water Fisheries Act apply to the territorial waters around mainland Norway and Jan Mayen in the same way as they do to the Norwegian Economic Zone for Norwegian vessels. 469 The various regulations for regulatory measures and sea-water fisheries described above, which also apply to Norwegian vessels fishing in these waters, refer to the relevant penal provisions in the Participation Act and/or the Sea-Water Fisheries Act, including any provisions on confiscation pursuant to criminal procedure legislation, in the same way as they do to the Norwegian Economic Zone. As mentioned above, the prohibition against fishing for foreign vessels is sanctioned with penalties and confiscation pursuant to Sections 10 and 11 of the Act relating to a prohibition against fishing. The first of these sections states that any person who wilfully or negligently contravenes provisions set out in or pursuant to this Act is liable to a fine. Complicity to or attempts at contravention are subject to the same penalty. If the offender has previously been sentenced or convicted according to the same Act or to corresponding older statutory provisions, or if there are particularly aggravating circumstances, a fine or a term of imprisonment of up to three months can be imposed, either alone or in combination. Pursuant to Section 11, a vessel that has been used in the contravention of provisions of the Act may be seized 470 and its fittings, any catches and gear on board may also be confiscated, irrespective of who the owner is. Instead of seizing the vessel, catch, gear etc., the value 465 Section 3, first paragraph of the regulations relating to prohibitions against landing of fish. 466 Section 4, first paragraph of the regulations relating to prohibitions against landing of fish. 467 See also section of this report. 468 Section 2 of the Participation Act. 469 Section 2 of the Participation Act, and Section 1, first paragraph, litra a) of the Sea-Water Fisheries Act. 470 Sections 3, 5, 8 and 9 of the Act relating to a prohibition against fishing (the last section was annulled by Act of 4 December 1992 No. 124). 170

175 thereof may be confiscated from the offender or from the person on whose behalf he has acted, or from the owner. The fisheries authorities legal basis for administrative sanctions against Norwegian vessels that have contravened the fisheries regulations applies to the territorial waters around mainland Norway and Jan Mayen in the same way as it does to the Norwegian Economic Zone. 471 The main penal provision that applies to both Norwegian and foreign vessels that fish in the territorial waters around Svalbard is Section 4 of the Svalbard Act. Pursuant to the second paragraph of this section, any person who wilfully or negligently contravenes regulations set out pursuant to the first paragraph of this section or any prohibition, or any order laid down pursuant to the regulations, is liable to fines or to a term of imprisonment of up to one year unless the regulation in question stipulates a lower penalty. Complicity in a contravention is subject to the same penalty. The third paragraph of this section states that some of the penal provisions in Section 53 of the Sea-Water Fisheries Act, 472 as well as the provisions on confiscation pursuant to criminal procedure legislation in Section 54 of the same Act, apply to contraventions of the rules relating to fishing and hunting in these waters in the same way as they do in the Norwegian Economic Zone. In addition, for Norwegian vessels the other relevant penal provisions in Section 53 of the Sea-Water Fisheries Act and the penal provisions in the Participation Act apply to the territorial waters around Svalbard in the same way as they do to the Norwegian Economic Zone. 473 The penal provisions in the Coastguard Act apply to the territorial waters around mainland Norway, Jan Mayen and Svalbard in the same way as they do in the Norwegian Economic Zone. 474 The fisheries authorities legal basis for administrative sanctions against Norwegian vessels that have contravened the fisheries regulations applies to the territorial waters around Svalbard in the same way as it does to the Norwegian Economic Zone Norwegian mainland A key penal provision that applies to both Norwegian and foreign vessels in connection with landings in Norway, as well as to other parties who are involved in the first-hand sale of fish on shore, is Section 9 of the Raw Fish Marketing Act, as well as Section 53 of the Sea-Water Fisheries Act. Pursuant to Section 9 of the Raw Fish Marketing Act, any person who wilfully or through negligence contravenes the provisions set out in or pursuant to the Act, or is an accessory to such a contravention, is to be punished by fines. For contraventions of the 471 Section 2 of the Participation Act. 472 More specifically Section 53, third paragraph, second sentence of the Sea-Water Fisheries Act ( An attempt is subject to the same penalty as a completed offence ), fourth paragraph ( The master of the vessel may accept an optional fine on behalf of the employer. An employer may also be liable to a penalty in criminal proceedings against the master ), and paragraph 5 ( If the contravention has been committed by any member of the crew of a vessel, and criminal liability may be imposed on the master of the vessel in this connection, the subordinate shall not be liable to a penalty ). 473 Section 1, first paragraph, litra a) of the Sea-Water Fisheries Act, and Section 2 of the Participation Act, respectively. 474 Section 3, first paragraph, litra a) of the Coastguard Act. 475 Section 2 of the Participation Act. 171

176 provision laid down pursuant to the second paragraph of Section 7 of the same Act 476, fines or a term of imprisonment of up to six months can be imposed, or up to two years if there are particularly aggravating circumstances, unless the provision itself states that imprisonment may not be used. In addition, the Act relating to registration as a fish buyer contains a penal provision in Section 6 which states that any person who wilfully or negligently contravenes provisions set out in or pursuant to this Act will be liable to fines. Complicity and attempts at contravention are subject to the same penalty. For Norwegian vessels the penal provisions in the Participation Act and the Sea-Water Fisheries Act, including any legal basis for confiscation pursuant to criminal procedure legislation, apply to landings of fish in Norway in the same way as they do to the Norwegian Economic Zone. 477 The fisheries authorities legal basis for administrative sanctions against Norwegian vessels that have contravened the fisheries regulations applies to landings of fish in Norway in the same way as it does to irregularities committed in the Norwegian Economic Zone. 478 In addition, the third paragraph of Section 3 of the Act relating to registration as a fish buyer addresses the withdrawal of approval as a buyer if the conditions for being registered as a first-hand buyer are not complied with The use of administrative sanctions and double jeopardy A supplementary protocol of the European Convention on Human Rights (Protocol no. 7, Article 4, no. 1) contains a prohibition against repeated prosecution (double jeopardy). However, only repeated prosecution for the same offence is covered by the prohibition. Moreover, the prohibition only applies if it is the same subject that is exposed to repeated prosecution. 479 The European Court of Human Rights interprets the Convention s concepts autonomously, which means that national terminology is not decisive. 480 Thus, according to the circumstances, the prohibition against double jeopardy is also relevant to administrative sanctions and administrative prosecution. 481 With regard to the order of the administrative sanction and the criminal prosecution, in a plenary ruling in the Norwegian Supreme Court maintained that the prohibition against double jeopardy applies irrespective of the order in which the penalties are imposed. 483 With regard to fisheries cases, the issue of double jeopardy was addressed in the Supreme Court s judgement of 8 October The decision of the Directorate of Fisheries concerning a temporary discontinuation of the registration as a fish buyer in accordance with 476 I.e. regulations on monitoring activities conducted pursuant to the first paragraph, including rules on the registration of raw material received by the relevant enterprises with precise information on fish species, fish quantities, catch area etc. The phrase monitoring activities conducted pursuant to the first paragraph refers to the sales organisations monitoring to ensure compliance with the provisions in the Raw Fish Marketing Act and with the regulations pursuant to the Act. The monitoring activities also cover raw fish that is landed, including fish transferred from a fishing vessel to another vessel or transferred to aquaculture without sale taking place. 477 Section 2 of the Participation Act, and Section 1, first paragraph, litra a), cf. d), of the Sea-Water Fisheries Act 478 Section 2 of the Participation Act. 479 Norwegian Official Report NOU 2003:15, p Norwegian Official Report NOU 2003:15, p Norwegian Official Report NOU 2003:15, p Norwegian Supreme Court Reports 2002, p Norwegian Official Report NOU 2003:15, p Norwegian Supreme Court Reports 2004, p

177 the third paragraph of Section 3 of the Act relating to the registration as a fish buyer was regarded here as being adopted as part of a criminal prosecution case. It thus prevented the trial of a subsequent criminal case for the offence on which the decision was based. The fish buyer concerned was therefore acquitted of the offence pursuant to this point in the indictment Specific information on the use of the provisions of the Penal Code Confiscation pursuant to criminal procedure legislation directed at vessels and owners has a legal basis in both the special (i.e. fisheries) legislation and the Penal Code. Relevant legal bases in fisheries legislation are Section 54 of the Sea-Water Fisheries Act and Section 9 of the Economic Zone Act, while the relevant authorisations in the Penal Code are Sections 34 and The provisions in the Sea-Water Fisheries Act and the Economic Zone Act provide more radical confiscation rights than the Penal Code s general provisions on confiscation. 487 At the same time, however, the penalty framework in Section 54 of the Sea-Water Fisheries Act is supplemented by the provision on loss of civil rights in the Penal Code (Section 29 no. 2). Pursuant to the latter provision, a person who is found guilty of a criminal offence can when this is deemed necessary in the public interest be sentenced to lose the right to hold office or to pursue a certain activity or occupation for which he has proved to be unfit through the offence, or which he might misuse. The offender can lose this right for a defined period of up to five years or permanently. A person who has been deprived of this right may not engage in a similar activity on behalf of someone else. 488 Contraventions of provisions in the Sea-Water Fisheries Act can also simultaneously or alternatively entail contraventions of provisions in the Penal Code so-called concurrence of offences. The most relevant provisions in this connection are Section 166 of the Penal Code (giving false evidence to a public authority), Section 255 (embezzlement), Section 256 (gross embezzlement), and Section 317 (dishonestly handling stolen goods). However, with regard to the Raw Fish Marketing Act, in its judgement of 27 September 2004 (HR A) Norway s Supreme Court concluded that Section 166 of the Penal Code cannot be used in the concurrence of offences with the penal provision in Section 9 of the Raw Fish Marketing Act. The Supreme Court has so far not decided whether the Penal Code can be used instead of a relevant provision in the fisheries legislation General information on the application of the law The most important acts that are applied for contraventions of fisheries regulations, i.e. fisheries cases, are the Sea-Water Fisheries Act, the Economic Zone Act, the Raw Fish Marketing Act, and the Coastguard Act. Contraventions of the penal provisions in these acts will as a general rule be punished by the imposition of a fine on the captain and a confiscation order on the shipping company. However, the actual assessment of the fine and confiscation is a complex process. Considerable weight in the application of the law is 485 Collection of judgements on fisheries cases in northern Norway , compiled by the offices of the public prosecutor Troms and Finnmark counties as of 31 July The Raw Fish Marketing Act does not contain confiscation authorisation. In respect of contraventions of this Act, reference is therefore made to Sections 34 and 35 of the Penal Code. (Reference: letter of 20 June 2005 from the offices of the public prosecutor for Troms and Finnmark to the Director General of Public Prosecutions, case no. 216/2005LF, p. 5.) 487 Letter of 20 June 2005 from the offices of the public prosecutor for Troms and Finnmark to the Director General of Public Prosecutions, case no. 216/2005LF, p Norwegian Official Report NOU 2005:10, p Norwegian Official Report NOU 2005:10, p

178 assigned to the general deterrent effect, both when assessing the fine and in carrying out confiscation. Several of the relevant contraventions can result in substantial gains, and the setting of the penalty must therefore be viewed with this in mind. There are also legal precedents to show that purely formal contraventions should be punished by noticeable penalties as this is important with regard to fisheries control. However, the fine will be smaller in the latter contraventions than for fishing at variance with regulatory provisions or for deficient/non-existent reporting of catches. Wilful contraventions are penalised more severely than negligence, cf. Norwegian Supreme Court Reports 1991, p Consideration is also given to the extent of the negligence, cf. Norwegian Supreme Court Reports 1983, p When assessing the confiscation of assets, considerable importance is attached to the following factors: the grossness of the offence, objectively viewed; financial gains and/or potential financial gains; assets involved (value of the fishing vessel and gear); the vessel s catch capacity; the risk of detection; the perpetrator s subjective guilt; the owner s possible joint responsibility. As with fines, confiscations are larger in some cases substantially larger for straightforward unlawful fishing than for formal contraventions. As a general rule, confiscatory measures are also imposed in cases where the contravention has not been carried out with the purpose of securing unlawful gains, and even if such gains were definitely not a probable outcome of the contravention. 491 In some cases it will also be appropriate to conduct direct confiscation of certain objects. This particularly applies in cases where unlawful gear has been used for example trawl bags with too small a mesh size, round straps that are too short etc. 492 With regard to specific penalties, these have traditionally been set as fines that vary from NOK 5000 to NOK for the captain or the general manager at the fish landing facilities, while confiscatory measures against shore facilities and shipping companies have varied from tens of thousands of Norwegian kroner up to several million. In the event of repeated and/or serious and extensive contraventions, a term of imprisonment has been imposed in addition to fines and confiscation. Corporate penalties have been used in only a few cases. 493 The use of administrative sanctions Reference is made to the statistical review in Section of this report. As the findings here show, administrative sanctions have so far been used to only a small extent. Most of the cases have involved temporary retractions, for short periods of time, of a licence/ permit for commercial activities/fish-buyer authorisation. 490 Guidelines for fisheries cases, compiled by the offices of the public prosecutor for Troms and Finnmark as of 7 June Norwegian Official Report NOU 2005:10, p Norwegian Official Report NOU 2005:10, p Letter of 20 June 2005 from the offices of the public prosecutor for Troms and Finnmark to the Director General of Public Prosecutions, case no. 216/2005LF, p

179 7.2.2 Description of the assessment by the agencies involved of the sanction options authorised by acts and regulations The Coastguard The Coastguard s assessment of sanction options on proven or suspected contraventions of the fisheries regulations can be divided into two: 1) an assessment of the authority to impose sanctions; 2) an assessment of the actual fisheries regulations. 1. Assessment of the authority to impose sanctions Coastguard Squadron North (CGSN) is of the clear opinion that the current body of acts and regulations provides all the legal authority they need to be able to enforce the fisheries rules and regulations in a satisfactory manner Assessment of the actual fisheries regulations On the subject of the actual fisheries regulations, CGSN is of the view that there are still certain deficiencies and/or ambiguities in the technical regulatory measures, and claims in particular that the regulations relating to conversion factors 495 and by-catches are unclear and/or unnecessarily complicated. For example, many lawsuits concerning conversion factors have been lost because the court has maintained that the regulations allow more room for discretionary judgement than the Coastguard has deduced. More specifically, the problems are mainly due to the fact that factory ships make products other than those described in the list of conversion factors. The Directorate of Fisheries has therefore indicated for some time that it intends to present an updated regulation with new conversion factors that will resolve some of these ambiguities, but so far this has not materialised. At meetings with the Directorate of Fisheries, the Coastguard has therefore suggested that requirements be introduced regarding weighing the catch (i.e. the round weight) on board before it is filleted. However, so far this suggestion has not been accepted. With regard to bycatches, difficulties can include distinguishing between lawful by-catches and unlawful direct fishing of the same species The Directorate of Fisheries General The Directorate of Fisheries is basically satisfied with the control and sanction authorisations it has been granted in the Sea-Water Fisheries Act. With regard to the fisheries regulations themselves, the Directorate of Fisheries claims that the sanction options that are authorised in the regulations are largely satisfactory for fisheries cases based on control at sea and control of landings. 497 Deficiencies in the regulations In the Directorate of Fisheries assessment of the main challenges related to the current regulations, the following aspects are those that appear most immediate: 1) limitations in the authorisations for gathering information on fisheries cases based on sales inspections; 2) the 494 Interview with Coastguard Squadron North, 21 November Factors for converting processed fish products back to round weight. The term conversion factors is basically used for sea-based processing. Source: interview at the head office of the Directorate of Fisheries, 11 December Interview with Coastguard Squadron North, 21 November Interview at the head office of the Directorate of Fisheries, 2 November

180 wish for more far-reaching authorisations for confiscatory measures against shore facilities; and 3) ambiguous yield factors. 1) Limitations in the authorisations for gathering information Even though the Directorate of Fisheries is basically satisfied with the authority it has been granted through Section 45 of the Sea-Water Fisheries Act, clearer and more complete authorisations are still required in certain areas. For instance, access for inspection personnel must be given immediately, it must be possible to take catch samples, and it must be required that original accounting documents can be handed over. 498 In connection with the circulation for comment of the new Act relating to marine resources, the Directorate of Fisheries has therefore proposed that there should be a special authorisation that would allow it to require accounts and other such documents to be handed over at sales inspections. 499 Moreover, there are some documents/systems that enterprises are not currently obliged to draw up or establish. Inter alia, the fisheries provisions do not make it compulsory for enterprises to maintain an overview of their inventories, of the catch currently being processed, or of fish that is transported between facilities within the same enterprise. Such information cannot therefore be requested. 500 Several of the regional offices point out that this is a problem and express the wish to be given the authority to demand this type of information. 501 The head office of the Directorate of Fisheries has concluded that there is a particular need for special authorisation for the tracing of fish and has therefore also suggested this in the circulation for comment of the new Act relating to marine resources. The directorate s justification includes the following: The existing regulations appear to provide satisfactory possibilities for tracing and inspection and for imposing sanctions up to the time of landing. After landing, however, there is less possibility of tracing fish. This influences both the inspections and their results, and thus leads to a form of discriminatory treatment in the industry: there is a greater probability of being accused of a violation of the law if your business activities are at sea than if you are a business party on shore. In line with the principle of conducting horizontal control, the Directorate of Fisheries would like to have the opportunity to inspect and to impose sanctions along the entire business route for fish from the sea to the consumer in Norway or abroad. 502 In a supplementary circulation for comment of the new Act relating to marine resources, the Ministry of Fisheries and Coastal Affairs has also proposed a new authorisation of this type. 503 A particular challenge to which the Directorate of Fisheries refers is that the fisheries industry is developing in the direction of larger units, which means that an enterprise can 498 Interview at the head office of the Directorate of Fisheries, 2 November Letter of 9 June 2006 from the Directorate of Fisheries to the Ministry of Fisheries and Coastal Affairs. 500 Interview at the head office of the Directorate of Fisheries, 11 December Interview with the Directorate of Fisheries, Troms region, 13 November 2006; QuestBack survey targeted at the Directorate of Fisheries regional offices north of 62 N, November 2006; interview at the head office of the Directorate of Fisheries, 11 December Letter of 9 June 2006 from the Directorate of Fisheries to the Ministry of Fisheries and Coastal Affairs. 503 Letter of 31 October 2006 from the Ministry of Fisheries and Coastal Affairs. 176

181 consist of several different landing, processing, storage and transport units. There may also be considerable geographical distances between these units. This makes it even more difficult to trace the fish, and hence to carry out inspections and/or impose sanctions. 504 Reference is also made to the description of the control authorisations of the Directorate of Fisheries in Section of this report. 2) The wish for more far-reaching authorisations for imposing confiscatory measures on shore facilities Up to the present, fishermen have been penalised pursuant to the penal provisions of the Sea- Water Fisheries Act, while fish-buyers have been subject to the penal provisions of the Raw Fish Marketing Act. This system applies irrespective of whether or not the buyer and the fisherman have cooperated on the contravention in question. In principle, the Sea-Water Fisheries Act provides sufficient confiscatory provisions to ensure that fishermen do not benefit from a contravention, i.e. retain net gains after their penalty has been imposed. However, this provision has not yet been incorporated into the latter Act. The Directorate of Fisheries views this as extremely unfortunate since it can mean that the offender, i.e. the fish buyer, can retain the gains from the crime even after he has been found guilty. This also represents something of a paradox since so far only buyers have been sentenced to imprisonment in fisheries cases. 505 To compensate for this deficiency, the prosecuting authorities have in several cases also based the indictment on corresponding provisions in the Penal Code. However, this has not always had the desired result. The Directorate of Fisheries has therefore concluded that it would be most appropriate for the relevant sanctions as far as possible to have their legal basis in the special legislation, i.e. the fisheries regulations. In connection with the circulation for comment of the new Act relating to marine resources, the Directorate of Fisheries suggestions therefore include a new and broader confiscation authorisation that is intended to handle the problem of confiscatory measures against fish buyers. 506 In supplementary round in which the new Act was circulated for comment, the Ministry of Fisheries and Coastal Affairs has also proposed a new authorisation of this type ) Ambiguous yield factors Both the head office of the Directorate of Fisheries and all five of the northernmost regional offices point out that inadequate yield factors 508 represent a key challenge with regard to inspections and sanctions on land. 509 The regional office in Nordland county expands on this 504 Letter of 9 June 2006 from the Directorate of Fisheries to the Ministry of Fisheries and Coastal Affairs. 505 Interview at the head office of the Directorate of Fisheries, 2 November Interview at the head office of the Directorate of Fisheries, 2 November Letter of 7 July from the Ministry of Fisheries and Coastal Affairs. The letter refers to the proposal of 20 June 2005 from the offices of the public prosecutor for Troms and Finnmark, approved by the Director General of Public Prosecutions on 3 November 2005, on incorporating confiscation authorisation into the Raw Fish Marketing Act. However, the Ministry of Fisheries and Coastal Affairs has still not finally decided whether the new authorisation is to be incorporated into the above Act or into the Act relating to marine resources. 508 Factors for converting processed fish products back to round weight. The term yield factor is in general used for land-based production. Source: interview at the head office of the Directorate of Fisheries, 11 December Interview at the head office of the Directorate of Fisheries, 11 December 2006; interview with the Directorate of Fisheries, Møre og Romsdal region, 3 November 2006; interview with the Directorate of Fisheries, Nordland region, 20 November 2006; interview with the Directorate of Fisheries, Troms region, 13 November 2006; QuestBack survey targeted at the regional offices of the Directorate of Fisheries north of 62 N, November

182 by pointing out that in general the industry has developed its own processing methods which make the current yield and conversion factors uncertain, and that the yield of the individual operator varies. This also means that the results of sales inspections may be unreliable and therefore do not provide grounds for penalties. 510 According to the regional office in Troms, there have also been few inspections of warehouses and sales targeting cod due to the lack of reliable yield factors. 511 The regional offices of Møre og Romsdal and Nordland counties have had similar experiences. 512 One of the regional offices is also of the view that the parties involved are to a large extent aware of the problem and therefore exploit the weaknesses this creates for control. Even though a number of the sales inspections conducted have revealed quantity discrepancies of 5 10 per cent, uncertainty about the inspection methods and the conversion factors that are to be used have resulted in the regional offices being unwilling to report discrepancies of this order of size. A discrepancy of 5 10 per cent can be satisfactorily explained away in court, which means that the discrepancy must be as large as 10 per cent or even more before there is sufficient certainty for a decision to report the matter. This must be viewed in connection with the fact that it is not compulsory for the enterprises to produce and document a yieldfactor overview. 513 (See also point 1 above.) As a specific example, the regional office in Troms has said that the conventional facilities have adapted to a factor that has won cases in court 0.7 after researchers at the fisheries research institute Fiskeriforskning demonstrated that it is feasible to achieve a yield of this size in the production of salted fish. However, this trial was conducted under rather ideal conditions, and the Directorate of Fisheries therefore claims that in practice the yield will be at a lower level at the actual processing facilities. 514 According to the Directorate of Fisheries, this has resulted in great efforts being made to further develop and produce new yield factors. More details in this respect are given in Section above Police and prosecuting authorities Police districts In a questionnaire survey conducted by the OAG in the ten northernmost police districts in the country, eight of these districts say that the statutory framework and regulations provide them with adequate authorisations to handle fisheries cases. One of the ten districts is nonetheless uncertain as to whether the authorisations are adequate, and another says that they do not have adequate powers. One example given was that there are no regulations for confiscatory measures against shore facilities. It was also pointed out that there are some deficiencies in the conversion rules for fish and in the rules for assessing confiscations. 510 Interview with the Directorate of Fisheries, Nordland region, 20 November Interview with the Directorate of Fisheries, Troms region, 13 November Interview with the Directorate of Fisheries, Møre og Romsdal region, 3 November 2006; interview with the Directorate of Fisheries, Nordland region, 20 November Interview with the one of the Directorate of Fisheries regional offices, autumn Interview with the Directorate of Fisheries, Troms region, 13 November Interview at the head office of the Directorate of Fisheries, 11 December

183 According to the police, the last point means that when vessels are seized and brought into Norwegian ports, the setting of confiscations is a long process. 516 Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime (Økokrim) Like most of the police districts, Økokrim is of the view that there are sufficient sanction options in the regulations to handle fisheries cases. In the opinion of Økokrim, any deficient follow-up of fisheries cases cannot be attributed to a lack of statutory authorisation and the necessary policy instruments, nor is there a need to institute criminal proceedings for fisheries cases that are different from those for other offences. 517 The offices of the public prosecutor for Troms and Finnmark The offices of the public prosecutor for Troms and Finnmark (the public prosecutor for Troms and Finnmark) consider that the fisheries regulations are good and that they function as intended. This office prefers to use the penal provisions in the fisheries legislation rather than those in the Penal Code since the latter often make cases more complicated and have contributed to some cases taking considerable time to settle. The fisheries legislation is more specific, and it is easier to gain acceptance for the use of these provisions in the legal system. In addition, the penal frameworks for fisheries cases were also changed in the fisheries legislation in 2001, which means that the limitation period is now five years in this context as well compared with the previous two years. The public prosecutor is of the view that as the situation stands today there would be little advantage in applying the Penal Code to achieve more severe penalties. Individual cases show that it is possible to attain as much through the use of the special legislation as through the use of the Penal Code. 518 In its guidelines 519 the public prosecutor for Troms and Finnmark provides recommendations regarding the cases for which the use of the Penal Code can be considered. 520 On the initiative of the public prosecutor, a bill has been drawn up for amendments to the Raw Fish Marketing Act in order to fill the gap regarding confiscatory measures that currently authorise confiscation from vessels but not from shore facilities. It is particularly experience from two previous court cases that has formed the basis of this suggestion. 521 The present legal situation is that when a landed catch has not been reported or has been reported incorrectly on the landing declaration, the prosecuting authorities can impose a fine on the fisherman and confiscatory measures against the fishing vessel/ shipping company corresponding to the value of the under-reported catch plus part of the value of the vessel, gear and other catch on board. Fines can also be imposed on fish buyers who in practice commit the same criminal offence as the fishermen. However, there is normally no possibility whatsoever of imposing confiscatory measures on fish landing facilities/shore 516 The extract included a graphic presentation and table based on the responses to the OAG s survey of 20 October 2006 for the ten northernmost police districts: Østfinnmark, Vestfinnmark, Troms, Midtre Hålogaland, Salten, Helgeland, Nord-Trøndelag, Sør-Trøndelag, Nordmøre og Romsdal, and Sunnmøre. 517 Minutes from the meeting between the OAG and Økokrim, 19 June The public prosecutor refers among other cases to the Solhaug case, Norwegian Supreme Court Reports 2004, p. 1500, and the Falck case, Norwegian Supreme Court Reports 2004, p Guidelines from the offices of the public prosecutor for Troms and Finnmark for cases that concern violations of the Economic Zone Act, the Sea-Water Fisheries Act, the Coastguard Act and the Raw Fish Marketing Act. 520 The extract is based on responses to the OAG s survey of 20 October 2006 of the ten northernmost police districts. 521 Solhaug case, Norwegian Supreme Court Reports 2004, p. 1500, and the Værøy case, Lofoten District Court, spring

184 facilities. 522 Confiscation can only be used in those cases where evidence can be produced to show that the fish has been unlawfully caught. 523 The public prosecutor for Troms and Finnmark maintains that in most cases this is an almost impossible task 524 and is of the opinion that the prevailing state of the law regarding the difference between fishing vessels/ shipping companies and fish landing facilities/shore facilities is both unacceptable and extremely unfair. The amendment bill aims to remedy this discrepancy and has been sent to the Ministry of Fisheries and Coastal Affairs The fishermen 526 Responses from the fishermen are divided into four categories and are shown in two tables. The first two categories consist of all fishermen and the fishermen who have experienced penalties from the authorities either directly, or indirectly through the captain and/or the shipping company (Table 28). The two last categories consist of all fishermen in the coastal fishing fleet and all those in the deep-sea fishing fleet (Table 29)). Table 28 Fishermen s opinions on whether written warnings, the current level of fines, the risk of confiscation of the value of the catch and the risk of loss of fishing rights have a deterrent effect. Per cent 527 Category of fishermen All fishermen 528 All fishermen who have experienced penalties directly/indirec tly 529 Agree/Disa gree Completely /partly agree Completely /partly disagree Completely /partly agree Completely /partly disagree Written warning is a deterrent Current fine level is a deterrent Confiscation of catch is a deterrent Loss of fishing rights is a deterrent Solhaug case, Norwegian Supreme Court Reports 2004, p Falck judgement, Norwegian Supreme Court Reports 2004, p Letter of 20 June 2005 from the office of the public prosecutor for Troms and Finnmark to the Director General of Public Prosecutions concerning the proposal on amending Act no. 3 of 14 December 1951 relating to the marketing of raw fish. 525 Minutes of a meeting between the offices of the public prosecutor for Troms and Finnmark and the OAG, 27 June The data have been collected from the QuestBack survey conducted 1 24 September Originally 624 names were randomly drawn from sheet B of the list of professional fishermen. This list of names was sent to a telephone information company who were able to correlate one or more telephone numbers with 499 of those who were originally selected. Of these, there was no reply to the call from a total of 184. In addition it was found that 128 did not conform to the selection criteria (cod fishermen). Among the 187 who remained, 103 said they were willing to respond to the survey, i.e. a response rate of 55 per cent. The 103 respondents include a category for a Don t know/not relevant response. This category has been excluded from the calculation of the different frequency distributions. 527 Excluding the Don t know/not relevant category, which varies from 0.0 to 5.8 per cent of the original respondents in the various response categories indicated in this table. 528 The numbers of respondents in this category are 97, 98, 99 and 101, respectively for the various sanctions measures. 180

185 The figures in Table 28 indicate that the proportion of fishermen who are of the opinion that sanctions are a deterrent increases with the severity of the sanctions. This applies irrespective of whether they have experienced penalties or not. In general, the figures also show that the great majority of fishermen completely or partly agree that the various sanctions with authorisation in the regulations have a deterrent effect. Table 29 Fishermen s opinion on whether written warnings, the current level of fines, the risk of confiscation of the value of the catch and the risk of loss of fishing rights have a deterrent effect according to fishermen in the coast fishing fleet and the deep-sea fishing fleet, respectively. Per cent 530 Category of fishermen All coastal fishermen Agree/Disa gree Completely /partly agree 531 Completely /partly disagree All deepsea fishermen 532 Completely /partly agree Completely /partly disagree Written warning is a deterrent Current fine level is a deterrent Confiscation of catch is a deterrent Loss of fishing rights is a deterrent The trends are the same for fishermen in the coastal fishing fleet and for those in the deep-sea fishing fleet, respectively, if these two fleet groups are viewed separately (Table 29). With the exception of written warnings, these figures also show that there are only minor differences between the opinions on the various sanction measures experienced by the fishermen in the two fleet groups. 7.3 Formal structure of enforcement and prosecution General description of the system for enforcement and prosecution in fisheries cases In practice it is the inspection at sea and on land, the Coastguard and the Directorate of Fisheries, that detect most of the contraventions of the regulations related to the fisheries sector. These bodies can then choose between several different types of penalty, administrative or criminal, that can be imposed on offenders. Penalties for less serious contraventions often take the form of a written warning. In more serious cases, or in the event of repeated contraventions, the vessel may be seized (by the Coastguard) or reported to 529 The numbers of respondents in this category are 43, 43, 44 and 44, respectively for the various sanction measures. 530 Of the 103 original respondents, five were selected here because they had experience from both fleet groups. Thus the point of departure in this case is 98 respondents 73 fishermen in the coastal fishing fleet and 25 in the deep-sea fishing fleet. The Don t know/not relevant category, which varies from 0.0 to 6.excluded here. 531 The numbers of respondents in this category are 68, 68, 69 and 71, respectively with regard to the various sanction measures. 532 The number of respondents in this category is 25 for all sanction measures. 181

186 the police. As an alternative to reporting to the police, the Directorate of Fisheries can also impose administrative sanctions. 533 A case may have several different outcomes after being handled by the police/prosecuting authorities. It can for various reasons be dropped for example if the evidence is insufficient to allow the proceedings to continue. Even though the prosecuting authorities find proof of guilt, they may still close the case with a dismissal of criminal proceedings pursuant to the Criminal Procedure Act if they find there are material grounds for not prosecuting. 534 If sufficient evidence is available, and other conditions for criminal proceedings are met, the prosecuting authorities can either issue a penalty charge notice for a fine and/or confiscation, or they can prefer an indictment for the case if this is deemed necessary. If the penalty charge notice is accepted, when relevant, the case is regarded as formally concluded. If the penalty charge notice is not accepted, and in other cases when an indictment is preferred, the case is sent to the courts for further processing. The criminal case is tried in the district court in the first instance, which will pronounce an acquittal or a conviction. Figure 5 provides a rough flowchart of the formal structure and process of enforcement and prosecution in fisheries cases. Figure 5 Formal structure and process of enforcement and prosecution in fisheries cases I. Contravention detected II. Penalty - supervisory auths. III. Criminal investigation IV. Adopted by prosecuting authorities V. Processing in courts CG (sea) Written warning Reporting to the police/arrest Case dropped or dismissed Conviction Reporting Investigation Indictment Acquittal DIRF (land) Written warning Penalty notice Accepted Administrative penalties Case closed 533 Filing a report with the police or issuing a written warning will not always exclude the possibility of administrative penalties, cf. letter of 19 March 2007 from the Director General of Public Prosecutions to the OAG. 534 If, for example, a person is charged with several contraventions concurrently, of varying degrees of seriousness, a decision may be made not to prosecute for offences that will result in a minor penalty compared with the other offences, to make the process more economical (cf. Section 70 of the Criminal Procedure Act). 182

187 7.3.2 Authorities that are responsible for control and enforcement at sea (the Coastguard) The Coastguard s formal authority with regard to enforcement and prosecution The Coastguard s formal competence in this area has already been partly described in sections and In addition to its police authority (described in the sections mentioned), the Coastguard also has a prosecuting role since it has the authority to investigate and impose enforcement measures pursuant to criminal procedure legislation. When exercising this authority, the Coastguard is under the jurisdiction of the prosecuting authorities The Coastguard s cooperation with other bodies on enforcement and prosecution As mentioned in sections and 6.4.1, the Coastguard Act ascribes the Coastguard the authority to ensure compliance in Norwegian waters with the regulations in certain areas of administration. Since these supervisory activities are carried out on behalf of others, it has been appropriate to enter into cooperative agreements with these bodies. Accordingly the Coastguard cooperates extensively with the Directorate of Fisheries on the enforcement of the fisheries legislation and on the use of penalties/sanctions for violations of these laws. This cooperation has been formalised in guidelines on enforcement for the Coastguard and the Directorate of Fisheries, also discussed in section The Coastguard s penalty options for contraventions of the fisheries regulations General The Coastguard s supervisory and enforcement authority is described in Chapter 5 of the Coastguard Act. 536 Whether or not an enforcement measure can be applied in a specific case is primarily dependent on whether the conditions for the use of the measure in question have been fulfilled. In addition, any decision as to whether an enforcement measure should be used or not is made in the light of the principle of necessity and proportionality, which is cited in the first paragraph of Section 27 of the Coastguard Act: The Coastguard can use law enforcement measures and can make other physical interventions against individuals, vessels or fixtures to the extent that the enforcement measure or the intervention in question is regarded as necessary and is in proportion to the seriousness of the situation, to the purpose of the service s action, and to any other circumstances. 535 With the exception of places in this report where a different reference is explicitly stated, this description of facts is exclusively based on written inputs from the Chief Coastguard of 25 August, 12 September and 12 December 2006, respectively. 536 The penalty options that the Coastguard has at its disposal pursuant to the Coastguard Act are as follows: arrest of vessels, cf. Section 25; searching of individuals, vessels and fixtures, cf. Section 26; confiscation, cf. Section 26; arrest of persons, cf. Section 26; ordering the person in charge of the fishing vessel to stop fishing or hunting activities and to pull in trawls or other gear, cf. Section 29; taking active steps to stop fishing or hunting operations, such as pulling up or cutting gear etc., cf. Section

188 A decision to use an enforcement measure will also be based on the principle of discretionary prosecution. 537 This principle states that the Coastguard may on its own initiative decide whether and how to act in its capacity as public official when the legal prerequisites are fulfilled. However, only basic sanctions are described in the presentation below. 538 For the Coastguard these concern arrest, reporting to the police and written warnings. Arrest Arrest entails bringing a vessel into a Norwegian port, if necessary by force. If the arrest takes place in connection with an investigation, it is a criminal enforcement procedure and is subject to the rules for such interventions. These have their legal basis in Section 25 of the Coastguard Act. For arrest to be carried out there must be reasonable grounds for suspecting a criminal offence, cf. Section 36, or a contravention of the fisheries legislation, cf. Section 9. Section 36 refers to actions that impede the Coastguard s work, 539 while Section 9 refers to contraventions of the provisions set out in or pursuant to the Act relating to a prohibition against fishing, the Economic Zone Act, the Sea-Water Fisheries Act, the Participation Act or the Svalbard Act. Violations of the law that are of a similar nature and degree of seriousness are in principle handled in the same way irrespective of the nationality of the fishing vessel. However, nationality can be decisive for whether the vessel is arrested or only reported. If Norway has entered into a cooperative agreement on collection of fines with the country in question, the Coastguard will not normally arrest the vessel to ensure payment of any fine imposed. 540 In general it can therefore be said that Norwegian vessels and vessels that are registered in countries with which Norway has such a cooperative agreement are not arrested unless there is a risk of evidence being destroyed. 537 The principle of discretionary prosecution is a general principle that applies to all administrative authorities. The principle is based on the assumption that the government agency can itself decide whether and how to act in its capacity as public official when the legal prerequisites are fulfilled. The principle thus allows for situation-conditioned discretionary judgement when the question arises of whether or not the delegated authority should be used. This is particularly relevant with respect to the activities of the Coastguard, when Coastguard officers act as police officers in criminal cases. In the context of criminal cases, the principle of discretionary prosecution means that the prosecuting authorities can waive prosecution if they find this to be the best solution. For a police officer, this principle means that he is under no obligation to start investigations or to submit reports to the prosecuting authorities for example on trivial misdemeanours that he observes or experiences but can, for instance, simply issue a warning. The authority to use enforcement measures is based on the same principle. Source: of 4 January 2007 from the Chief Coastguard. 538 In this context other penalty options, cf. next footnote, are to be regarded as enforcement measures pursuant to criminal procedure legislation and physical measures. 539 The following are specifically listed in Section 36, first paragraph, of the Coastguard Act: a) failing to obey orders given by the Coastguard; b) failure to provide the assistance required; c) failure to provide the necessary information; d) submitting incorrect documents; e) giving incorrect information; f) seeking by other means to mislead the Coastguard; g) destroying evidence by damaging or abandoning a vessel, fixtures or gear. 540 In the event of criminal contraventions of Norwegian fisheries legislation for which there is no risk of the destruction of evidence, the Coastguard does not arrest the vessel if the flag state is Sweden, Denmark, Iceland or the Faroe Islands. The Coastguard then reports the case in the usual manner to the Norwegian prosecuting authorities, who are then responsible for further follow-up of the case. This also applies vis-à-vis the flag state. This is based on the Nordic police cooperation and a Nordic police cooperative agreement. In addition, the memorandum between Norway, Sweden and Denmark concerning the fisheries inspection arrangement in the joint fishing area in the Skagerrak allows the inspection of the other party s vessels. If, for example, the Norwegian Coastguard detects a violation of the Swedish regulations, they can pass this information on to the Swedish authorities so that the matter is followed up when the vessel arrives in Sweden. Source: of 23 February 2007 from Coastguard Staff. 184

189 Reporting to the police Since it is authorised to exercise police authority, the Coastguard is also subject to police rules concerning the duty of a police officer to submit reports, cf. Section 229 of the Criminal Procedure Act 541 and the first paragraph of Section 7-3 of the Prosecution Instructions. 542 The duty to make information available applies to criminal offences that the Coastguard itself has witnessed if such an offence is subject to public prosecution. However, the principle of discretionary prosecution states that the Coastguard s officers have no unconditional obligation to submit reports on all the criminal offences they may witness. In principle, however, criminal offences must be reported so that the prosecution authorities as the appropriate body have the opportunity to consider the question of prosecution. Written warnings In general it can be said that the Coastguard does not usually report trivial contraventions. However, in the interests of achieving a deterrent effect, the Coastguard has established a practice whereby any violation of the regulations is brought to the notice of the party that has committed the violation and the party is informed about it. If a violation that is liable to a penalty is regarded as a minor one, the Coastguard will as a rule consider giving only a warning rather than reporting the matter. This warning is logged. In cases where two or more different violations or contraventions that separately qualify for a warning are detected in the same inspection, the Coastguard considers reporting the matter (and, if appropriate, arresting the vessel). The same applies in cases where two or more contraventions of the same aspect of the law that separately qualify for a warning have been committed during a period of two years. However, in the event of more serious criminal contraventions, the Coastguard reports the offence to the local police district. 541 Criminal Procedure Act of 22 May Regulations of 28 June 1985 relating to the system of prosecuting authorities. 185

190 Box 11 The Coastguard s legal basis for the enforcement of Norwegian fisheries legislation in areas that are subject to Norwegian fisheries jurisdiction United Nations Convention on the Law of the Sea (UNCLOS): As described in section 6.1.1, Article 73 of UNCLOS states that within its economic zone the coastal state has the right to take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with the Convention. This authority applies to all fishing vessels, irrespective of nationality. Coastguard Act: The Coastguard Act gives the Coastguard administrative supervisory authority with regard to fisheries legislation in all areas that are subject to Norwegian fisheries jurisdiction. Through this Act the Coastguard is thus assigned the authority to enforce Norwegian fisheries legislation in the Norwegian Economic Zone, the Fisheries Protection Zone around Svalbard, and the Jan Mayen Zone. Special exceptions regarding the Grey Zone: Pursuant to the Grey Zone Agreement between Norway and Russia, the Norwegian Coastguard shall apply enforcement measures and inspect Norwegian vessels or vessels with Norwegian fishing licences in accordance with the rules that apply in the Norwegian Economic Zone. Furthermore, the Coastguard can arrest foreign vessels that have neither Norwegian nor Russian fishing licences, cf. regulations of 13 May 1977 relating to fishing and hunting operations by foreign nationals in the Economic Zone of Norway. However, the Coastguard cannot monitor or enforce Norwegian fisheries legislation vis-à-vis Russian vessels in the Grey Zone. Police rules: The Coastguard Act gives the Coastguard police authority with regard to the enforcement of the fisheries legislation and other laws. When exercising police authority in accordance with the Coastguard instructions, the Coastguard is subject to police instructions and guidelines, i.e. the Police Act of 4 August 1995, and the third paragraph of Section 1-1 etc. of the general service instructions for the police of 22 June 1990, to the extent that these are appropriate (cf. section ). Prosecution rules: The Coastguard also has a prosecuting role with regard to the areas it supervises, cf. Section 34 of the Coastguard Act. Here it is stated that the Coastguard comes under the jurisdiction of the prosecuting authorities when conducting investigations and applying enforcement measures. In its exercising of this prosecuting role, the Coastguard is obliged to take into consideration the prevailing criminal procedure rules such as the Criminal Procedure Act and the prosecuting instructions. Other guidelines: In addition to instructions in the form of acts and regulations, the Coastguard in cooperation with the Directorate of Fisheries has drawn up guidelines on enforcement. These guidelines were prepared for use in resource control and aim to achieve consistent enforcement and uniform penalties from the Coastguard and the Directorate of Fisheries on violations of the regulations. They indicate penalty forms, with some tolerance where relevant, for contraventions committed by Norwegian and foreign vessels at sea in connection with fishing operations in a wide sense, and for contraventions committed by receivers and buyers of fish and fish products. (Source: letter of 26 October 2006 from the Directorate of Fisheries.) 186

191 7.3.3 Authorities that are responsible for control and enforcement on land (the Directorate of Fisheries) The Directorate of Fisheries formal competence with regard to the enforcement of Norwegian fisheries legislation The legal basis for the Directorate of Fisheries formal competence with regard to the enforcement of Norwegian fisheries legislation is mainly set out in Section 45 of the Sea- Water Fisheries Act. 544 Monitoring compliance with prevailing rules is a key component of resource management, and to fulfil this obligation the Directorate of Fisheries has by law been assigned unimpeded access to vessels and shipping company offices in order to inspect accounts and other relevant documents and information, as well as the right to stop and examine vessels and shore facilities etc., and to place inspectors on board vessels to observe and register fishing operations, cf. Section 45 of the said Act, second to eighth paragraphs The Directorate of Fisheries cooperation with other agencies on the enforcement of Norwegian fisheries legislation The Directorate of Fisheries cooperates extensively with other supervisory agencies on the control and enforcement of fisheries legislation. The most important cooperative partners are the Coastguard, the Norwegian Tax Administration and the Norwegian Customs. More details are given about these agencies in Sections 6.6 and 6.9. In addition to the cooperation with these bodies and the formal agreements that form the basis for this cooperation, a special agreement concerning measures against unlawful activities in the fishing industry was made on 21 January 2003 between three of these supervisory bodies and the most important trade associations. 545 The objectives of this agreement are to counter various forms of unlawful activities, to help to increase understanding of the regulations, to give assistance in compiling the necessary new rules and in simplifying existing regulations, and to ensure that the situation in the industry is described correctly. As part of this process, the agreement ascribes both the industry and the authorities more detailed obligations. The Directorate of Fisheries regional offices have also established various procedures for cooperating with adjacent agencies and the police both in general and in individual cases. 543 This description of facts is based exclusively on written input from the Directorate of Fisheries of 26 October This provision states that the Directorate of Fisheries shall ensure compliance with the provisions of this Act and of Act of 26 March 1999 No. 15 relating to the right to participate in fishing and hunting, in Section 3, Section 4 and Section 7 b of Act of 17 December 1976 No. 91 relating to the Economic Zone of Norway, and in Act of 17 June 1966 No. 19 relating to a prohibition against fishing, etc. by foreign nationals in Norway s territorial waters, Act of 14 December 1951 No. 3 relating to the marketing of raw fish, and Act of 24 June 1994 No. 34 relating to registration as a first-hand buyer of raw fish, etc., and the regulations issued pursuant to these acts. 545 The Directorate of Fisheries, the Norwegian Tax Administration and the Directorate of Customs and Excise are the authorities involved, and the cartel of the Norwegian Confederation of Trade Unions for the employees of trade organisations in the manufacturing sector, the Norwegian Seafarers Union, the Norwegian Federation of Fish and Aquaculture, the Norwegian Seafood Association, the Norwegian Fishermens Union, and the Norwegian Coastal Fishermens Union representing the fisheries industry. 187

192 Directorate of Fisheries reaction options for violations of the fisheries regulations General In addition to the fisheries legislation s general provisions on penalties, a number of legal authorisations, with appurtenant regulations, have been established to allow the fisheries authorities to react to different violations of the legislation. However, these authorisations have different content depending on the act/regulations according to which they have been laid down as well as whom and which contravention they are intended to penalise. At the same time, they have different purposes. There is a basic distinction between reactions that clearly have a penal purpose (punitive/administrative sanctions) and reactions that only have a restitutive effect and that are not intended to be a sanction. The latter category of reactions is not relevant in this context. 546 When the fisheries authorities select a penalty/sanction, as well as considering the actual issue of legal authorisation they also take into account that the penalty/sanction is to have a general deterrent effect on the industry itself and a specific individual deterrent effect on the offender. Consideration is also given to the fact that the penalty/sanction must be in proportion to the actual violation of the law, at the same time as the various penalties/sanctions are subject to the restrictions imposed by the double jeopardy prohibition in Article 4, no. 1, of supplementary protocol no. 7 of the European Convention of Human Rights. The various penalties/sanctions that are available to the Directorate of Fisheries for violations of the fisheries legislation can be divided into written warnings, reporting to the police and administrative sanctions. The Enforcement Guidelines provide assistance in the use of the first two forms of sanctions but not the last apart from pointing out that the double jeopardy prohibition mentioned above will govern the approach used in deciding on the option of using administrative sanctions rather than reporting the matter. 546 The penalties that apply in this context are mainly the administrative confiscation of the catch or its value pursuant to Section 7 and the third paragraph of Section 11 of the Sea-Water Fisheries Act. Decisions on confiscation according to the former and latter provisions are adopted by the sales organisation and the regional office of the Directorate of Fisheries, respectively, with the Directorate of Fisheries acting as appeal body in both cases. Furthermore, the Directorate of Fisheries is authorised through Section 27 of the Participation Act to confiscate a catch or its value that exceeds the limitations per fishing trip stated in the licence for the vessel in question. Such confiscation decisions taken by the Directorate of Fisheries are based on the forms sent in by the sales organisations. Pursuant to Section 6 a of the Raw Fish Marketing Act, the settlement for products delivered contrary to the Act may also be confiscated from the sales organisation. The Directorate of Fisheries is also the appeal body for these confiscation decisions. 188

193 Written warnings The fisheries legislation does not currently contain any general provisions on issuing warnings. However, on the basis of the general principles of administrative law, the fisheries authorities have used warnings in a number of less serious cases for which contraventions of the law have been noted. A warning has no direct legal effect. It takes the form of information to the party concerned that a contravention of the rules has been noted but that the violation is not serious enough for reporting to the police or for administrative sanctions to be viewed as a suitable penalty. In cases where the same inspection detects two or more different infringements or contraventions, each of which qualifies for a warning, the Directorate of Fisheries considers reporting the matter. The same applies in cases where two or more contraventions of the same aspect of the law, that separately qualify for a warning, have been committed during a period of two years. Reporting to the police If the fisheries authorities find that a violation of the law is of a nature that warrants reporting as the most appropriate sanction option, a petition to the police is prepared by the Directorate of Fisheries in which prosecution and a penalty are requested for the offender. The case is then handled by the police/prosecuting authorities and, if appropriate, by the legal system. Administrative sanctions In contrast to reporting to the police, these are sanctions that the fisheries authorities handle alone. Administrative sanctions are used in cases for which the Directorate of Fisheries regards reporting to the police as not a very appropriate form of penalty 547 while written warnings are viewed as insufficient. As mentioned in section 7.2.1, administrative sanctions can be divided into the following categories: 1. Rejection of applications for/revocation of permits for commercial activities (Norwegian vessels); 2. Refusal and revocation of licences (foreign vessels); 3. Fines for offences; and 4. withdrawal of fish-buyer authorisations. 1. Rejection of applications for/revocation of permits for commercial activities (Norwegian vessels) Pursuant to the Participation Act, a vessel cannot be used for commercial fishing or hunting without having a permit for such operations. 548 According to the same Act, special permission (licence) cannot be granted without the above permit having been issued. 549 Even if the objective conditions in the Act for granting the permit are fulfilled 550 the Directorate of Fisheries can reject an application if the owner of the vessel or others who have run a vessel on behalf of the vessel owner have grossly or repeatedly violated provisions set out in or pursuant to this Act or to other fisheries legislation. 551 Similarly, the Directorate of Fisheries can retract permits for commercial activities. 552 According to the Participation Act, special permission (licence) is also annulled if the permit for commercial operations is annulled or revoked. This means that the vessel can no longer legally be used for fishing and hunting operations. 553 The same Act also states that in less 547 i.e. in cases where both forms of sanctions cannot be used simultaneously due to the double jeopardy prohibition. 548 Section 4 of the Participation Act. 549 Section 13 of the Participation Act. 550 Sections 5 and 6 of the Participation Act. 551 First paragraph, litra c of Section 7 of the Participation Act. 552 Second paragraph, litra e of Section 11 of the Participation Act. 553 Section 18 of the Participation Act. 189

194 serious cases a permit for commercial activities can also be revoked for a defined period of time (temporary revocation of the permit) Refusal and revocation of licences (foreign vessels) Pursuant to the regulations relating to fishing and hunting operations by foreign nationals in the Economic Zone of Norway and in the Fisheries Zone around Jan Mayen, foreign vessels must have a licence from the Directorate of Fisheries to conduct fishing and hunting operations in these two zones. 555 Even if the objective conditions for the allocation of the licence are fulfilled, the licence can be refused according to the regulations if the owner of the vessel, the master or the crew has fished contrary to the regulations in the areas subject to Norwegian fisheries jurisdiction, or if the vessel has been used in a contravention. The same applies when the vessel or the vessel s owner has taken part in unregulated fishing in international waters for stocks that are managed by Norwegian authorities, or has fished contrary to regulatory measures laid down by regional fisheries management organisations. 556 On a similar basis, a licence that has been granted can be revoked Fines for offences Pursuant to the Participation Act, the Directorate of Fisheries can impose a fine for offences in cases of wilful or negligent violations of the provisions set out in or pursuant to this Act or other fisheries legislation. The fine must be in proportion to the profit the party responsible has gained from the contravention, and the final decision on the fine for an offence forms the basis for enforcing payment Retraction of fish-buyer authorisations The Act relating to registration as a fish buyer states that the Directorate of Fisheries can retract a fish-buyer authorisation if the conditions for being registered as a first-hand buyer are not complied with. In the same way as for violations of the provisions of the Participation Act, this can also entail an applicant being denied registration for a certain period of time The police and the prosecuting authorities Main features of the organisation of the police and the prosecuting authorities The police service in Norway is divided into two parts with regard to organisation and functional leadership: one part of the police is under the Ministry of Justice and the Police and the National Police Directorate while the other falls under the Director General of Public Prosecutions and the public prosecutors, cf. the figure below. 554 Third paragraph, Section 11 of the Participation Act. 555 Section 4 of the Regulations relating to fishing and hunting operations by foreign nationals in the Economic Zone of Norway, and Section 4 of the Regulations relating to fishing and hunting operations by foreign nationals in the Fisheries Zone around Jan Mayen. 556 Section 6, first paragraph of the Regulations relating to fishing and hunting operations by foreign nationals in the Economic Zone of Norway, and Section 6, first paragraph of the Regulations relating to fishing and hunting operations by foreign nationals in the Fisheries Zone around Jan Mayen. 557 Section 6, second paragraph of the Regulations relating to fishing and hunting operations by foreign nationals in the Economic Zone of Norway, and Section 6, second paragraph of the Regulations relating to fishing and hunting operations by foreign nationals in the Fisheries Zone around Jan Mayen. 558 Section 28 of the Participation Act. 559 Section 3 of the Act relating to registration as a fish buyer. 190

195 Figure 6 Organisation of the police and the prosecuting authorities Government Ministry of Justice and the Police Director General of Public Police Directorate Public prosecutors The police s policing authority The police s prosecuting authority The Ministry of Justice and the Police and the National Police Directorate make up central police management. The National Police Directorate, which is a government body under the ministry, has the executive responsibility for the functional leadership and management of the police service. However, the directorate has no responsibility for investigations or other processing of offences and does not form part of the prosecuting authorities. The Director General of Public Prosecutions and the public prosecutors have the overall functional responsibility for processing offences within the police. This means that the police s prosecuting authorities are subordinate to the public prosecutors, under the leadership of the Director General of Public Prosecutions. 560 The prosecuting authorities exercise their authority independently of political authorities. Only the King in the Council of State can give instructions on the exercising of this authority a right that in practice has not been used in individual cases. 561 The prosecuting authorities are built up in stages: above the police are the public prosecutors, above whom is the Director General of Public Prosecutions, above whom is the King (the Government). In this hierarchy, and within the deadline rules etc. that apply, the superior prosecuting authority can always reverse a decision that a subordinate prosecuting body has made, and it can instruct the subordinate body in advance on what it is to do. The superior prosecuting authority can also take over a case that has been placed under a subordinate prosecuting body, or transfer it to a different subordinate body. The activities of the prosecuting authorities are regulated by the Criminal Procedure Act and the Prosecution Instructions. 562 These instructions constitute extensive set of rules and regulations governing the work of the prosecuting authorities and 560 Police website, Letter of 19 March 2007 from the Director General of Public Prosecutions to the OAG. 562 Andenæs, Johs. (2000): Norsk straffeprosess [Norwegian Criminal Procedure], pp

196 the police in criminal offences, and have their legal basis in Section 62 of the Criminal Procedure Act Responsibilities of the prosecuting authorities The prosecuting authorities are also responsible, through the Coastguard, for the investigations that take place at sea. This includes use of enforcement measures such as arrest of vessels during investigations at sea. The Coastguard s functions in connection with assertion of sovereignty, cf. Section 8 of the Coastguard Act, ordinary supervision of fisheries, supervision of catches and resource control, cf. Section 9, and environmental supervision, cf. Section 11, lie outside the sphere of responsibility of the prosecuting authorities, however. 564 Box The task of the prosecuting authority is to arrive at an objectively correct decision, and this authority must therefore adopt an objective and impartial position. The prosecuting authority s responsibilities may be summarised in four points: 1. Lead the investigation of criminal offences 2. Decide whether to prefer an indictment 3. Prosecute the case before the courts 4. Issue orders that the judgement is to be executed following the pronouncement of judgement in a case The investigation shall attempt to establish both arguments in favour of the suspect and arguments that may reinforce the suspicion levelled against him. The indictment forms the basis for the ensuing criminal case. It is through the indictment that the prosecuting authority expresses its decision to demand a penalty for the party being charged The prosecuting function of the individual agencies within the prosecuting authorities a. The police as part of the prosecuting authorities Within the individual police district, it is the chief of police and police lawyers who discharge the prosecuting function that is associated with the prosecuting authorities. 566 The prosecuting competence of the police is regulated in the Criminal Procedure Act 567 and in supplementary rules in the Prosecution Instructions. The police prosecuting authority may initiate investigations and take decisions regarding prosecution during the investigation. This also applies in cases where the decision to prefer an indictment falls under a higher prosecuting authority. b. The public prosecutors 563 Royal Decree of 28 June 1985 with subsequent amendments. 564 Letter of 19 March 2007 from the Director General of Public Prosecutions to the OAG. 565 Andenæs, Johs. (2000): Norsk straffeprosess [Norwegian Criminal Procedure], p. 42 and p. 308, cf. Act no. 25 of 22 May 1981 relating to legal procedure in criminal cases (the Criminal Procedure Act), Section 226, third paragraph; letter of 19 March 2007 from the Director General of Public Prosecution to the OAG. 566 Norway is divided into 27 police districts, each headed by a district commissioner. 567 Cf. Section 67 of the Criminal Procedure Act. 192

197 The public prosecutors are a superior prosecuting authority to the police and do not belong under the police. Norway is divided among ten public prosecution offices. In principle, the public prosecutors have competence in all matters that do not come under a higher prosecuting authority: the Director General of Public Prosecutions or the King in Council, or a lower prosecuting authority: the police. 568 In practice this means that the public prosecutor has the competence to decide on the question of prosecution in the case of more serious crimes. The public prosecutors are also the appeal authority for prosecution decisions taken by the police prosecuting authority. In addition the competence of the public prosecutor encompasses the right to use legal remedies, i.e. the right to appeal a court decision to a higher court. 569 c. The Director General of Public Prosecutions heads the prosecution authority The Director General of Public Prosecutions heads the prosecution authority. 570 He or she is not subordinate to any ministry. Nor can the Storting issue instructions to the Director General concerning his or her exercise of authority in specific cases, and the Storting can only issue general directives through acts of law. The Director General of Public Prosecutions has the right to issue instructions to and reverse the decisions of the public prosecutors and the police, and this very largely takes place via circulars to the officials of the prosecution authorities. 571 The King in Council, that is to say the Government, may on occasion instruct the Director General to reverse his or her own decisions. However, there is a strong tradition for the King in Council not to intervene in decisions reached by the Director General of Public Prosecutions in individual cases Fishery cases north of 62ºN responsibility and procedure 573 At national level 574 there are two public prosecution offices with primary responsibility for fisheries cases. 575 The public prosecutor for Troms and Finnmark has responsibility for cases from the Trøndelag region and northwards. 576 The public prosecutor for Rogaland is responsible for cases south of this region, i.e. some of which is north of 62ºN. The area north of 62ºN has ten police districts. 577 Part of the reason for this centralisation of overriding responsibility is to ensure that fisheries cases receive the correct priority and that penalties are coordinated Cf. Section 66 of the Criminal Procedure Act. 569 Police website, Cf. Section 56, second paragraph of the Criminal Procedure Act. 571 Andenæs, Johs. (2000): Norsk straffeprosess [Norwegian criminal procedure], pp. 46 ff. 572 Police website, This presentation is based largely on the records of a meeting between the public prosecutor for Troms and Finnmark counties and the OAG, 27 June I.e. cases that concern breach of the fisheries legislation. 575 Cf. Section 33-2 of the Prosecution Instructions. 576 I.e. from the Nord-Trøndelag to Grense Jakobselv River, the border with Finland, and Svalbard, Østfinnmark, Vestfinnmark, Troms, Midtre Hålogaland, Salten, Helgeland, Nord-Trøndelag, Sør-Trøndelag, Nordmøre og Romsdal, and Sunnmøre police districts. 578 Guidelines from the public prosecutor for Troms and Finnmark for cases that concern violations of the Economic Zone Act, the Sea-Water Fisheries Act, the Coastguard Act and the Raw Fish Marketing Act; letter of 19 March 2007 from the Director General of Public Prosecution to the OAG. 193

198 The public prosecutor for Troms and Finnmark has a special responsibility for cases involving vessels in fisheries issues 579, and issues guidelines for the processing of cases. 580 This means that the individual public prosecution office is responsible for landing and shore facility issues in connection with fisheries in its own region. In the event of violations as a result of collaboration between vessel/ shipping company and landing facility, it is also the individual office which is responsible for control and follow-up Procedural times at the police a) Investigation of possible violations The police investigate possible fisheries violations when reports are filed by other authorities. The police never detect fisheries crime themselves. 581 In practice, it is the Coastguard and the Fisheries Directorate that both detect and report suspected violations to the police. When a report is filed, documentation of the infringement that is being reported is normally appended for police use in further work on the case. 582 Reports from the Coastguard and the regional offices of the Directorate of Fisheries normally include the name of the party and/or vessel/ shipping company/enterprise that is being reported, a referral to the penal provision or rule that is considered to have been violated, and a general description of the offence. The report normally also contains a detailed description of how the violation was detected, the evidence that has been secured etc. Also normally appended to the reports are relevant regulations, inspection memos or reports from a fisheries inspector and if available documentary evidence (copy of catch logbook, sales note/takeover declaration etc.) 583 In principle, most of the investigation should have been carried out by the time the report is filed, so that it is mainly concrete questioning or actions that remain. 584 However, in light of the report, the police lawyer who handles the case must decide whether the report needs to be supplemented by further investigation before a decision to prosecute can be taken. The captain/day-to-day manager normally has to be questioned, and information about the shipping company/enterprise must be procured via the Register of Business Enterprises. It may also be necessary to obtain supplementary information from the party filing the report, and the need for further searches must be considered. 585 Økokrim, the Norwegian special unit for investigating economic crime, may assist the local investigation if requested to do so by the police district. Their assistance is contingent on the police requesting help. 586 The members of the Assistance Team make strategic plans for local investigation, take part in the investigation and contribute to raising the expertise of the 579 Cases concerning infringements of legislation relating to the Norwegian Economic Zone, including the Fisheries Protection Zone around Svalbard and the Jan Mayen Zone, cf. Section 33-2 of the Prosecution Instructions. 580 Thus cases that are investigated by the police districts of Northern Norway and by the Governor of Svalbard belong to the public prosecutor for Troms and Finnmark when it comes to prosecution, cf. guidelines from the public prosecutor for Troms and Finnmark. 581 Minutes of a meeting between the public prosecutor for Troms and Finnmark and the OAG, 27 June Minutes of a meeting between the Directorate of Fisheries and the OAG, 2 November Guidelines from the public prosecutor for Troms and Finnmark for cases that concern violations of the Economic Zone Act, the Sea-Water Fisheries Act, the Coastguard Act and the Raw Fish Marketing Act. 584 Minutes of a meeting between the public prosecutor for Troms and Finnmark and the OAG, 27 June 2006; letter of 19 March 2007 from the Director General of Public Prosecutions to the OAG. 585 Guidelines from the public prosecutor for Troms and Finnmark for cases that concern violations of the Economic Zone Act, the Sea-Water Fisheries Act, the Coastguard Act and the Raw Fish Marketing Act. 586 Minutes of a meeting between Økokrim and the OAG, 19 June

199 police district in handling economic crime generally, including fisheries cases. The assistance also includes taking action during the investigation of fisheries cases. Parties who are questioned are not obliged to explain themselves to the police. Before the suspect is questioned, he shall be informed of what the case concerns, and that he is not obliged to explain himself. 587 No-one is obliged to contribute to their own conviction. As a general rule, a witness does not have a duty to explain himself to the police either. 588 However, a refusal to make a statement to the police does not release the suspect from the obligation to testify, but may compel the police to request a judicial examination, i.e. an examination with participation of the court. 589 b) Arrest and filing of report When a vessel is arrested by the Coastguard and enters a port, a police lawyer and investigator will board the Coastguard vessel in question and receive the Coastguard s report and any items seized and will be given an account of the case. The need for assistance from the Coastguard in taking any further investigatory steps must also be considered. At the same time the police will normally take charge of the arrested vessel. 590 When a foreign vessel is arrested, a bank guarantee for an unlimited period through a Norwegian bank is required. This is done to ensure that a penalty is possible subsequently. The public prosecutor does not accept bank guarantees from Russian banks, since the Norwegian State Collection Agency does not accept them because of the risk of losing the whole claim. If it is not possible to obtain a guarantee for an unlimited period, the guarantee must be formulated in such a way that the collection agency has a real possibility of collecting the guarantee after a legally binding decision has been reached in the case. The collection agency therefore recommends that guarantees be given a duration of up to six months following a legally binding ruling. However, most cases end with the acceptance of a penalty notice. 591 Norwegian vessels are not arrested. They are reported by post. 592 Only in cases of very serious violations and/or risk of spoilt evidence is arrest a possibility. 593 Reports will normally be filed in the police district in which the shipping company in question has its address. Arrested vessels will usually be brought to the nearest police district. Reports must be registered in STRASAK, the police register of criminal cases, where the party filing the report must always be noted. This also applies in cases where a report is registered as several cases. This practice is intended to ensure that the enforcement agencies, in practice the Coastguard and the Directorate of Fisheries, receive confirmation that a report has been filed and are informed of the decision in the criminal case Cf. Section 232 of the Criminal Procedure Act. 588 Cf. Section 230, first paragraph of the Criminal Procedure Act. 589 Cf. Section 108 of the Criminal Procedure Act. 590 Guidelines from the public prosecutor for Troms and Finnmark for cases that concern violations of the Economic Zone Act, the Sea-Water Fisheries Act, the Coastguard Act and the Raw Fish Marketing Act. 591 Minutes of a meeting between the public prosecutor for Troms and Finnmark and the OAG, 27 June Minutes of a meeting between the public prosecutor for Troms and Finnmark and the OAG, 27 June Guidelines from the public prosecutor for Troms and Finnmark for cases that concern violations of the Economic Zone Act, the Sea-Water Fisheries Act, the Coastguard Act and the Raw Fish Marketing Act. 594 Guidelines from the public prosecutor for Troms and Finnmark for cases that concern violations of the Economic Zone Act, the Sea-Water Fisheries Act, the Coastguard Act and the Raw Fish Marketing Act. 195

200 Decisions by the prosecuting authorities a) Dismissal and withdrawal of prosecution The investigation forms the basis for the further decision on the case, and aims primarily to procure the prosecuting authorities material for deciding whether a penalty notice should be issued or a charge brought. 595 If, for reasons relating to evidence or for other reasons there is no judicial basis for proceeding further with the case, it will be dismissed by the police. Even if the prosecuting authorities find proof of guilt, they may still close the case with a dismissal of criminal proceedings pursuant to the Criminal Procedure Act if they find there are material grounds for not prosecuting. 596 b) Indictment If the prosecuting authorities find grounds to bring a charge, they may issue an indictment against the supposed perpetrator and/or the enterprise in question, which will form the basis for the further proceedings. 597 c) Penalty notice If the prosecuting authority finds that a case should be resolved by imposing a fine (penalty) or seizure (which is not a penalty), for example on a shipping company and/or captain or both, a penalty notice can and should be issued instead of a charge being brought. 598 This is an offer from the prosecuting authority to the suspected party to settle up swiftly and simply. This decision-making takes place without court participation. If the penalty is not accepted, and the police will not dismiss the case, it has to go to court. 599 If a penalty imposed on a foreign vessel is not accepted, the prosecuting authorities have to contact the district court, have a date set for the main hearing and then serve a summons on the captain and any witnesses on board the vessel. This takes place before the vessel in question leaves the quay. 600 In other respects, the case is handled in the same way as other cases where penalties are not accepted. 601 The right to issue a penalty notice is not associated with the penalty framework for the specific criminal offence, but with the penalty that the authorities wish to impose in the specific case. Nor is there any maximum limit for the fine that can be accepted through a penalty notice. 602 Penalties other than fines may not be imposed through a penalty notice, for example prison sentences and loss of rights. Confiscation may be decided upon by a penalty notice, alone or together with a penalty Johannes Andenæs, Norske straffeprosess [Norwegian criminal procedure], p. 14; letter of 19 March 2007 from the Director General of Public Prosecutions to the OAG. 596 Cf. Section 69 of the Criminal Procedure Act. 597 The party authorised to bring a charge is as a general rule the public prosecutor if it is a case of a felony, and the chief of police or another police lawyer if it is a matter of a misdemeanour. 598 Cf. Section 255 of the Criminal Procedure Act; cf. Section 20-1 of the Prosecution Instructions. 599 Andenæs, Johannes (2000): Norsk straffeprosess [Norwegian criminal procedure], p Letter of 19 March 2007 from the Director General of Public Prosecutions to the OAG. 601 Guidelines from the public prosecutor for Troms and Finnmark for cases that concern violations of the Economic Zone Act, the Sea-Water Fisheries Act, the Coastguard Act and the Raw Fish Marketing Act. 602 Andenæs, Johs. (2000): Norsk straffeprosess [Norwegian criminal procedure], p Andenæs, Johs. (2000): Norsk straffeprosess [Norwegian criminal procedure], p

201 d) Requirements regarding form A penalty notice shall be just as well founded as an indictment. Like an indictment, the penalty notice must contain both a citation of the penal provision and a description of the actual circumstances to which the penalty notice applies. In addition it must contain a specification of the fine and/or confiscation that is demanded, and the prison sentence that applies if the fine is not paid, i.e. imprisonment in default. 604 The notice shall contain an encouragement to the party charged to state whether he accepts the notice by a stipulated deadline; normally 3-10 days is given for reflection. 605 Acceptance takes the form of the signature of the party charged on the penalty notice, i.e. the party s own signature. This is not the same as admitting guilt. It is permissible to accept in order to avoid the extra strain a court case often implies. 606 The operator of a vessel can also accept a penalty notice on behalf of his principal. 607 e) Competence to issue a penalty notice Section 255 of the Criminal Procedure Act names the prosecuting authority as the party that issues penalty notices. In principle this must mean the prosecuting authority that has the competence to initiate criminal proceedings in the case. In criminal cases, competence rests with the public prosecutor, unless it has been delegated to the police with authorisation in Section 67, second paragraph. However, it is sufficient that the public prosecutor reaches a decision that a penalty notice is to be issued and what it is to encompass. The actual issuing may be left to the police (cf. Section 20-4 of the Prosecution Instructions). 608 The general rule pursuant to the Criminal Procedure Act is that the police decide the question of indictment in cases of misdemeanours and felonies which according to the law cannot result in a prison sentence of more than one year. 609 In fisheries cases, most offences fall in practice into one of these categories. When a penalty notice is not accepted, or the statement of acceptance has not come in by the expiry of the period of reflection, the prosecution authorities can send the case to court with a request for a ruling with reference to the fact that the penalty is in the place of an indictment. 610 The case is sent to court by the police. 611 The superior prosecution authority has the right to intervene and overturn an accepted penalty in favour of the party charged. 612 However, he cannot overturn the penalty notice to 604 Cf. Section 256 of the Criminal Procedure Act. 605 Cf. Section 256 of the Criminal Procedure Act; Andenæs, Johs. (2000): Norsk straffeprosess [Norwegian criminal procedure], p Andenæs, Johs. (2000): Norsk straffeprosess [Norwegian criminal procedure], p Cf. Section 36, 6th paragraph, first sentence of the Coastguard Act; Section 53, fourth paragraph of the Sea- Water Fisheries Act; Section 8, third paragraph, first sentence of the Economic Zone Act; letter of 19 March 2007 from the Director General of Public Prosecutions to the OAG. 608 Andenæs, Johs. (2000): Norsk straffeprosess [Norwegian criminal procedure], p Cf. Section 67, second paragraph of the Criminal Procedure Act. 610 Cf. Section 268 of the Criminal Procedure Act; cf. Section 20-8, first paragraph of the Prosecution Instructions. 611 If the penalty notice has been issued as the result of a decision by a higher authority, the case must only be submitted if a decision has not been made concerning the handling of the case if the penalty notice is not accepted, or if the nature of the case indicates otherwise (cf. Section 20-8, second paragraph, and Section 20-4, first paragraph, third sentence) of the Prosecution Instructions. 612 Cf. Section 258, first paragraph of the Criminal Procedure Act and Section 20-9 of the Prosecution Instructions. 197

202 the disfavour of the party charged if he feels that the fine has been set too low. He can, however, take the opportunity to instruct the police with future cases in mind. 613 f) Appeal and reversal The prosecuting authority s decision to dismiss a case, not to prosecute, issue a penalty notice or issue an indictment can be appealed to the superior prosecuting authority. The Director General of Public Prosecutions decision cannot be appealed, however. 614 Legal proceedings that have been initiated can also be dropped by a higher prosecuting authority. A decision not to prosecute or to drop initiated legal proceedings against a charged party can be reversed by a higher prosecuting authority within three months. This deadline applies even if the decision has not been reached by a competent prosecuting authority Types of sanction that may be relevant in fisheries cases 616 Table 30 below shows the legal bases in fisheries cases: Andenæs, Johs. (2000): Norsk straffeprosess [Norwegian criminal procedure], p Cf. Section 59a of the Criminal Procedure Act. 615 Cf. Section 75, first and second paragraph of the Criminal Procedure Act. 616 There is authorisation for fines and prison sentences in several places in the provisions of the Penal Code as well as in the fisheries legislation. For details of the area of application of the various types of penalty, see Section : Description of freedom of action etc., sanctions/penalty frameworks. 617 A party who is found guilty in a criminal act may in addition to the penalties mentioned in the table be sentenced to a loss of rights as a formal penalty pursuant to Section 29 of the Penal Code. The provision provides a legal basis for a penalty of loss of a position or activity that the guilty party has proved unsuitable for or which it must be feared he would abuse. 198

203 Table 30 Types of sanction and legal bases in fisheries cases Type of Legal basis sanction Fine Section 53, 1st paragraph of the Sea- Water Fisheries Act Section 31, 1st paragraph of the Participation Act Section 8, 1st paragraph of the Economic Zone Act Section 36, 1st paragraph of the Coastguard Act Section 10 of the Act relating to prohibition against fishing Section 9 of the Raw Fish Marketing Act Section 6 of the Act relating to the registration of fish buyers Section 4, 2nd paragraph of the Svalbard Act Imprisonment Section 53, 1st paragraph of the Sea- Water Fisheries Act Section 31, 1st paragraph of the Participation Act Section 36, 1st and 2nd paragraphs of the Coastguard Act Section 10 of the Act relating to prohibition against fishing Section 4, 2nd paragraph of the Svalbard Act Section 9 of the Raw Fish Marketing Act Confiscation Sea-Water Fisheries Act Section 54 Section 9 of the Economic Zone Act Section 11, 1st paragraph of the Act relating to prohibition against fishing Sections 34 and 35 of the Penal Code Comments In fisheries cases, fines will normally be imposed on the master of the ship. In the event of repeated and/or serious or extensive infringements of fisheries legislation, it may be relevant to use imprisonment, alone or in combination with fines, imposed on the master of the vessel and the day-to-day manager of fish landing facilities. In principle, imprisonment cannot be used for foreign fishermen. 618 The Raw Fish Marketing Act does not specifically authorise confiscation. Confiscation from fish landing facilities/shore facilities must therefore be considered pursuant to the general authorisations for confiscation in Sections 34 and 35 of the Penal Code. Confiscation is normally directed at the shipping company/enterprise in question. If the master of the vessel and the shipping company are one and the same person, one penalty is normally imposed which consists of both fine and confiscation. 619 Corporate penalties It may be relevant to consider imposing a corporate penalty in addition to fining the master of the vessel and seizing shipping company assets in cases where repeated and/or serious 618 Cf. Section 73 no. 3 of the United Nations Convention on the Law of the Sea, cf. Norwegian Official Report NOU 2005:10, p Guidelines from the public prosecutor for Troms and Finnmark for cases that concern violations of the Economic Zone Act, the Sea-Water Fisheries Act, the Coastguard Act and the Raw Fish Marketing Act. 199

204 infringements have been committed, in cases where illegal fishing has meant the potential for substantial profits for the shipping company, and/or in cases where it is particularly important to stress the criminal and preventive aspects with respect to the shipping companies. 620 In cases where foreign vessels are arrested for old criminal offences, and where a new captain has taken over in the meantime, it may be practical to impose a fine on the enterprise pursuant to Section 48 a and b of the Penal Code rather than to impose a fine (with the practical problems this will normally entail) on the captain who has left the ship. 621 Encumbrances When requested by the prosecuting authority, the court may decide to place an encumbrance on the vessel for a certain amount when there is reason to fear that the enforcement will otherwise be spoilt or made substantially more difficult. Even if the vessel does not belong to the party charged, an encumbrance may be placed on it. When an encumbrance has been placed on a vessel, it means that the vessel may not leave the place where it is berthed. If the vessel is not lying in port, the decision regarding encumbrance shall contain an order to go to a specified place. If other satisfactory security is provided, the encumbrance can be avoided. The encumbrance lapses when it is withdrawn by the prosecuting authority or when the court decides so through a ruling because the reason for the encumbrance no longer exists. Distinguishing between misdemeanours and felonies Norwegian criminal law distinguishes between felonies and misdemeanours. A felony is a punishable offence of a more serious nature than a misdemeanour. According to Section 2 of the Penal Code, the general rule is that punishable offences in the fisheries legislation are felonies if they have a sentencing framework of more than three months imprisonment. Other punishable offences are classified as misdemeanours unless otherwise stated by the law. In fisheries legislation it is often decided that an action is a misdemeanour even if the sentencing framework exceeds three months. 622 Attempts at misdemeanours, i.e. an action that has not been completed, are not punishable, in contrast to attempted felonies. 623 In the case of the relevant provisions associated with fisheries cases, however, attempts are equated to completed actions. 624 In practice, the majority of violations of fisheries cases will be misdemeanours. Fines for misdemeanours are only registered in the Fines Register, not in the Register of Criminal Convictions 625, cf. Section 1, first paragraph second sentence and Section 6 of the Criminal Registration Act. Crimes against property in the Penal Code normally require that the guilt be wilful, but some relevant penal provisions also affect the grossly negligent or negligent misdemeanours, for 620 Cf. for example Norwegian Supreme Court Reports 1996, p. 624 and p Guidelines from the public prosecutor for Troms and Finnmark for cases that concern violations of the Economic Zone Act, the Sea-Water Fisheries Act, the Coastguard Act and the Raw Fish Marketing Act. 622 Mæland, Henry John (2004): Innføring i alminnelig strafferett [Introduction to general criminal law], 3rd edition, p Cf. Section 49 of the Penal Code. 624 Cf. Section 53, third paragraph, second sentence of the Sea-Water Fisheries Act; Section 8, second paragraph of the Economic Zone Act; Section 36, fourth paragraph, second sentence etc. of the Coastguard Act; letter of 19 March 2007 from the Director General of Public Prosecutions to the OAG. 625 Cf. Act of 11 June 1971 no. 52 relating to criminal registration (the Criminal Registration Act), Section 1, first paragraph, second sentence and Section

205 example Section 317 of the Penal Code. The penal provisions in the fisheries legislation also affect those who act negligently Procedural times at the public prosecutors Infringements of the fisheries legislation will normally be misdemeanours, which means that the police prosecuting authority has full competence (cf. Section 67 of the Criminal Procedure Act). However, in order to ensure consistency of penalties, and particularly to ensure that similar cases are treated in the same way, all fisheries cases (the whole case) shall routinely be sent to the public prosecutor for Troms and Finnmark for review and verification as soon as a legally binding decision has been made in the form of a penalty notice or a judgement. Cases that are dismissed are not covered by this requirement. 627 The public prosecutor for Troms and Finnmark has the role of functional authority in fisheries cases. After reaching a conclusion with the police, all fisheries cases must go to the public prosecutor for Troms and Finnmark for verification. The formal responsibility for quality assurance only applies to cases involving vessels (cf. Section 33-2 of the Prosecution Instructions), but as a rule cases against landing facilities are also sent in for review and verification. 628 In those cases where Coastguard Squadron North or South or the Directorate of Fisheries appeals the police s decision, the case goes to the public prosecutor The courts Rules and regulations for the court s treatment of criminal cases Rules for the organisation of the courts are set out in the Act relating to the courts of justice. 629 The Act describes the structure of the courts of justice system, the composition and authority of the courts, requirements regarding the qualifications and impartiality of judges, and applies to both civil and criminal procedure. The general rule for treatment of criminal cases is that they are treated according to the rules of the Criminal Procedure Act 630 unless otherwise specified in other legislation. In addition, some claims that do not involve penalties but are closely related to penalties are also treated pursuant to the rules of the Criminal Procedure Act, irrespective of whether they are treated alone or in connection with the proposed imposition of a penalty. 631 A claim for public confiscation will never be a penalty in the sense of the law (cf. Sections of the Penal Code) but must be treated according to the rules of criminal procedure. 632 Confiscation will 626 Letter of 19 March 2007 from the Director General of Public Prosecution to the OAG; guidelines from the public prosecutor for Troms and Finnmark for cases that concern violations of the Economic Zone Act, the Sea- Water Fisheries Act, the Coastguard Act and the Raw Fish Marketing Act. 627 Letter of 19 March 2007 from the Director General of Public Prosecution to the OAG; guidelines from the public prosecutor for Troms and Finnmark for cases that concern violations of the Economic Zone Act, the Sea- Water Fisheries Act, the Coastguard Act and the Raw Fish Marketing Act. 628 According to a written statement from the public prosecutor for Troms and Finnmark to the OAG in connection with verification of facts, 12 December Cf. Act no. 5 of 13 August 1915 relating to the courts of justice. 630 Cf. Criminal Procedure Act, Section Cf. Criminal Procedure Act, Section Cf. Criminal Procedure Act, Section

206 as a general rule be regarded as a penalty pursuant to the prohibition of double jeopardy in Protocol 7, Article 4 of the European Convention on Human Rights. 633 International law places certain restrictions on the penal process. Section 4 of the Criminal Procedure Act states that: The provisions of this Act shall apply subject to such limitations as are recognised in international law or derive from any agreement made with a foreign State. 634 The provision refers first to rules that follow directly from international law, 635 but also treaties to which Norway is a party. Similarly, a provision has been included in Section 1 of the Penal Code to the effect that as a general rule the Act (first part) applies to all criminal offences, but that the criminal legislation applies with the limitations ensuing from an agreement with a foreign state or of international law in other respects. The result is that in fisheries cases, for example, it is as a rule not possible to impose a prison sentence for a violation performed by masters of foreign vessels outside maritime territory, but within the boundaries of Norwegian fisheries jurisdiction (cf. Article 73 no. 3 of the United Nations Convention on the Law of the Sea) General information about the Norwegian courts of justice system 638 The courts in Norway are separate from the legislative and judicial authorities, i.e. the Storting and the Government. 639 The courts have the right and duty to adopt a position on specific cases that are brought to court. A case that is to be heard must be brought before the court by the party who wants the case tried. The courts do not take up cases on their own initiative. The ordinary courts in Norway are the Supreme Court, the Appeal Committee of the Supreme Court, the courts of appeal (six in all) and the district courts (75 in all). These courts adjudicate in both civil and criminal cases. 640 All ordinary criminal cases commence in the district court. Only the courts can impose penalties, and no-one may be penalised unless there is a legal basis for it. The Supreme Court is Norway s highest court, and the appeal authority for rulings handed down at a lower level. The decisions taken here are final and cannot be appealed. 641 Three of the Supreme Court judges constitute the Appeal Committee 633 Letter of 19 March 2007 from the Director General of Public Prosecutions to the OAG. 634 Even if there had not been such an explicit provision, in cases of doubt the Act would have been interpreted such that it did not come into conflict with international law. It follows from the general presumption principle: Norwegian law is presumed to be in agreement with international law. But the restrictions imposed by international law are directly made a part of Norwegian law through Section 4. Cf. Andenæs, Johs. (1997): Norsk straffeprosess [Norwegian criminal procedure], p For example, immunity from the heads of state and diplomats of foreign countries. 636 In the area between 12 and 200 nautical miles of the baselines. 637 Cf. also relevant provisions in Norwegian legislation, e.g. Section 53, second paragraph of the Sea-Water Fisheries Act. 638 Where no other sources are cited, the presentation of the courts is based largely on information from the website of the Norwegian courts, This follows from the principle of the separation of powers. The Norwegian Constitution does not regulate this directly, but it is clearly set out in the preparatory works. It also ensues indirectly from some constitutional provisions, for instance Section 88 to the effect that the Supreme Court pronounces judgement in the final instance. 640 All cases in the ordinary courts are presided over by professional judges who are members of the legal profession. But in both district courts and appeal courts, lay judges (ordinary citizens) take part in the hearing of criminal cases. There are two types of lay judges: ordinary and expert. The latter have specialised knowledge within one or more fields. As a rule, both categories are chosen by the municipal council for a period of four years. 641 Cases that may be brought before the European Court of Human Rights in Strasbourg are a special exception to this rule. 202

207 of the Supreme Court. This is regarded as a separate court which must consent to a case being brought before the Supreme Court. The Appeal Committee may also make final decisions in a number of cases. The Supreme Court judges serve on the Appeal Committee by turn. The judges are independent in their decision regarding the individual case. The judges cannot be instructed in their execution of judgement, and the Supreme Court s decisions may not be overturned by other authorities. 642 A ruling may be reversed by a higher court after the hearing of an appeal. 643 A higher court may not on its own initiative instruct a lower court on how to hear individual cases. If a party should go further with a decision, however, the higher court may decide that the lower court must hear the case again. The lower court must then abide by the evaluations upon which the higher court has based its decision. It is the Storting that passes the laws that the courts apply in the cases that are brought before them. The court interprets the law, and ultimately decides how it is to be understood. In addition, the courts have developed what is currently applicable law in a number of areas. It is an important principle that the court and the judges must not be subjected to influence in the direction of one or other result. A state under the rule of law requires judges who are independent and impartial in relation to the parties and interests they represent. This is fundamental to people s faith in the courts. The principle is expressed in the Act relating to the courts of justice, which establishes that a judge is independent in his or her function and shall reach judgements impartially and in a manner that inspires general confidence and respect. 644 For the same reason, the parties in a case may require that the judge withdraw from the hearing of the case. They can do this if the judge has a connection with the case or the parties that may create doubt as to whether he or she will make an unbiased assessment. Judges have an independent responsibility to ensure that they are impartial in each individual case. In other respects, judges as senior public officials have special protection of their offices pursuant to Section 22 of the Constitution, which shall ensure that they are not dismissed as a result of an unpopular decision with which the authorities or others disagree. Pursuant to the Act relating to the courts of justice, judges may therefore not be given notice of dismissal or moved against their will, and may only be dismissed after a legal process and ruling In the last few decades international courts have become increasingly important, particularly in connection with conventions on human rights. The European Court of Human Rights in Strasbourg plays an important part in legal developments, for example. If this court should interpret the convention differently from the Supreme Court, the Supreme Court will be obliged to take these decisions into account in the future. 643 The usual deadline for appeals in criminal cases is two weeks from the pronouncement of the ruling (cf. Section 310, first paragraph of the Criminal Procedure Act). 644 Cf. Act no. 5 of 13 August 1915 relating to the courts of justice, Section 55, third paragraph. 645 Cf. Section 55, fourth paragraph. 203

208 Procedural times in the courts of justice The hearing of fisheries cases in the courts is not different in principle from other types of criminal cases. All criminal cases are heard by the district court in the first instance Principles for the courts hearing of evidence in criminal cases It is an important principle in criminal law that it is the police and the public prosecutor who collect evidence through investigation, and who bring the case before the court in connection with the indictment (accusatorial system). The court shall be independent in the case, and assess the evidence without having adopted a position in advance on which evidence is to be presented. Nor does the person who is accused in the case have a duty to shed light on the case by presenting evidence. This means that it is the public prosecutor who has the onus of proof 647 in criminal cases. In determining what can be regarded as proven, only the evidence that is presented during the actual main proceedings is considered. Thus it is only what emerges during the proceedings before the adjudicating court that forms the basis for the ruling. 648 One important principle in connection with the court proceedings is that the evidence must be adduced first-hand in the court trying the case (best evidence rule). The court can only base its premises on what is in the investigation documents if they have been read out during the main proceedings. However, there is a limited right to do this. As a general rule, all witnesses that the parties wish to invoke must be questioned during the main proceedings, and the same also applies to other evidence such as the statements of the accused To what extent is the court bound by the legal bases invoked by the public prosecutor? When the public prosecutor has brought the case before the courts, the Criminal Procedure Act allows the court to take account of other actual circumstances and other legal provisions than those invoked by the public prosecutor. The prosecutor s contention as to what penalty the public prosecutor requires imposed, does not form a limit for the penalty that the court can impose. 652 If, for example, the public prosecutor has argued for a fine or a suspended prison sentence, the court may make the prison sentence immediately custodial instead. Penalties that have not been argued for may also be imposed, for example a fine or loss of rights in addition to a prison sentence. Confiscation may also be imposed by the court pursuant to the Criminal Procedure Act on the court s own initiative, without the public prosecutor lodging a claim for it. 653 In connection with a legal amendment to this effect in , the grounds given were that confiscation is a purely punitive sanction and that the competence of the court should therefore be the same in connection with confiscation as with penalties, unless there are good grounds for another solution. However, the court is not obliged to decide on the question of 646 Cf. Section 5 of the Criminal Procedure Act. 647 Cf. the website of the Norwegian courts, Cf. Section 305 of the Criminal Procedure Act. 649 Andenæs, Johs. (2000): Norsk straffeprosess [Norwegian criminal procedure], p. 15 ff. 650 Cf. Section 38 of the Criminal Procedure Act. 651 Only if it is a question of penal provisions to protect other interests is the stance of the public prosecutor final, cf. Andenæs, Johs. (2000): Norsk straffeprosess [Norwegian criminal procedure], p Cf. Section 38, second paragraph, second sentence of the Criminal Procedure Act. 653 Cf. Section 38, second paragraph, second sentence of the Criminal Procedure Act. 654 Cf. revision of the seizure rules in the Penal Code through Act no. 39 of 11 June

209 confiscation, and can decide not to adopt a position on it. 655 In addition, a penalty cannot be imposed in a case that only concerns confiscation. 656 After the main proceedings are completed, the case will be judged, and after deliberations between the judges judgement will be pronounced. A conviction must specify the main points of the court s evaluation of the evidence 657 This may be important for the parties when they consider whether to appeal the judgement, and for the court of appeal when considering whether an appeal should be submitted for a hearing. When it comes to the issue of guilt, a conviction shall [...] specifically and fully state the facts of the case that the court has found to be proved as a basis for the judgement [ ]. A description is required of the actual circumstances which, step by step, cover the conditions for liability for punishment. 658 An acquittal judgement shall [ ] state which reasons for a finding of guilt are deemed to be unfulfilled, or the circumstances that exclude a penalty or any other sanction that has been proposed Right to re-examined court rulings The judgement can be challenged within certain time limits through legal remedies (i.e. the means at the disposal of the parties in the case to have a court ruling re-tried) and appealed to the next legal authority, the court of appeal. The right to re-examination is considered to be an important guarantee for the protection accorded by the law. In criminal cases, an appeal to the court of appeal may concern the adjudication of the evidence associated with the question of guilt, the application of the law, the procedure or the sentencing. It is also possible under certain circumstances to appeal directly to the Supreme Court. The hearing of the appeal in the Supreme Court presupposes the consent of the Appeal Committee of the Supreme Court. 660 However, errors in the assessment of evidence in relation to the issue of guilt cannot be grounds for appealing to the Supreme Court. 661 This means that in the question of guilt, the Supreme Court is bound by the assessment of evidence made by the subordinate court. Supreme Court decisions are final. 7.4 Statistics over the use of sanctions and indictment Authorities that are responsible for control and enforcement at sea (the Coastguard) Statistics on the use of sanctions in the period This section will provide a review of the Coastguard s statistics on the use of sanctions, i.e. written warnings and filing of reports/arrests, in connection with infringements in the cod fisheries/all fisheries north of 62ºN in the period The review will consist of three tables: Table 31 will consider Coastguard Squadron North s (CGSN) penalties in the 655 Andenæs, Johs. (1997): Alminnelig strafferett [General criminal law], p. 349 ff. 656 Cf. Section 38, second paragraph, third sentence of the Criminal Procedure Act. 657 Section 40, fifth paragraph of the Criminal Procedure Act. 658 Section 40, second paragraph of the Criminal Procedure Act; Andenæs, Johs. (2000): Norsk straffeprosess [Norwegian criminal procedure], pp. 399 ff. 659 Cf. Section 40, fourth paragraph of the Criminal Procedure Act. 660 Cf. Section 323, first paragraph of the Criminal Procedure Act. 661 Section 306, second paragraph of the Criminal Procedure Act. 662 All data are obtained either directly from the Coastguard s inspection database or from Coastguard Squadron North s annual reports for the period in question. 205

210 form of written warnings, filed reports/arrests, and exclusions 663 in the cod fisheries in the Norwegian Economic Zone (the NEZ) and the Fisheries Protection Zone around Svalbard (the FPZ) in the period in question. Table 32 will consider CGSN s penalties in the form of written warnings, filed reports and arrests in all fisheries in the NEZ and the FPZ in the period in question, while Table 33 will provide an account of CGSN s penalties in the form of written warnings, filed reports/arrests and exclusions in the cod fisheries in the NEZ and the FPZ in the period in question, distributed between Norwegian and foreign vessels. Table 31 Coastguard Squadron North s penalties for infringements in the cod fisheries north of 65ºN broken down into the NEZ and the FPZ in the period Per cent Zone Total Written warnings Filed reports/arrests Expelled from field 664 NEZ FPZ As Table 31 shows, there were approximately twice as many infringement cases 667 in the FPZ as in the NEZ in the period in question. The figures also show clearly that written warnings are the most commonly used form of sanction, irrespective of zone. At the same time we see that arrest/filing of a report has been used more frequently as a form of sanction in the NEZ than in the FPZ in these fisheries in the period in question. According to CGSN, Russian vessels have been instructed by Russian authorities not to report to Norwegian authorities during fishing in the latter zone. 668 In such case, the ratio between arrests/filed reports and written warnings in the FPZ must also be viewed in this light. In absolute figures, the numbers of arrests/filed reports in the cod fisheries in NEZ and the FPZ in the period in question were 24 and 4, respectively. 663 Since exclusion has also been registered in the inspection database as a penalty in certain infringement cases, it has also been included in the table. However, exclusion is not regarded as a reaction that has a penal purpose, i.e. punishment/sanction. 664 Figures are rounded down to the nearest whole percentage, as a result of which one exclusion in the FPZ has fallen out. 665 The total number of infringement cases in the NEZ is The total number of infringement cases in the FPZ is This includes cases where a number of breaches of rules may have been discovered at the same time. 668 Annual reports of Coastguard Squadron North for 2003, 2004 and

211 Table 32 Coastguard Squadron North s penalties for infringements in all fisheries north of 65ºN distributed between the NEZ and the FPZ in the period Per cent Zone Total Written warnings Filed reports/arrests NEZ FPZ As Table 32 shows, infringement cases in the FPZ still comprise a clear majority of the total number of cases in the two zones when all fisheries are considered together, but to a less pronounced degree than cod cases. The table also shows that the pattern in this table with respect to the ratio between written warnings and reports/arrests in the NEZ and the FPZ is the same as in Table 31. Here too however, the ratio between these types of sanctions must be viewed in light of the fact that according to CGSN, Russian vessels have been ordered by Russian authorities not to report to Norwegian authorities while fishing in this zone. Table 33 Coastguard Squadron North s penalties for infringements in all fisheries north of 65ºN distributed between Norwegian and foreign vessels in the NEZ and the FPZ in the period Per cent Zone Norwegian vs foreign vessels Total Written warnings Formal reports/arrests 671 Expelled from field 672 NEZ 673 Norwegian Foreign FPZ 676 Norwegian Foreign The total number of infringement cases where more than one breach of rules may have been discovered at the same time is The total number of infringement cases where more than one breach of rules may have been discovered at the same time is 501. This is exclusive of three cases of arrests in Svalbard s territorial waters and internal waters, which are not a part of the FPZ. 671 Norwegian vessels are always reported, while foreign vessels are normally arrested unless any other measures are agreed. See also section of this report. 672 Figures are rounded off to the nearest whole percentage, as a result of which one exclusion from the FPZ has fallen out. 673 The total number of infringement cases here is the same as in Table 31, i.e The total number of Norwegian infringement cases in the NEZ is The total number of foreign infringement cases in the NEZ is The total number of infringement cases here is the same as in Table 31, i.e The total number of Norwegian infringement cases in the NEZ is

212 As shown in Table 33, there is a substantial difference between the NEZ and the FPZ with respect to the number of infringement cases involving Norwegian and foreign vessels, respectively. Norwegian vessels are involved in a third of cases in the NEZ, while in the FPZ they account for only 1 per cent (3 cases). When it comes to the ratio between written warnings and reports/arrests in the two zones, however, the pattern is seen to be the same for both Norwegian and foreign vessels as in the two previous tables Authorities that are responsible for control and enforcement on land (the Directorate of Fisheries) Statistics over the use of sanctions in the period This section will provide a review of the Directorate of Fisheries statistics on the use of sanctions i.e. written warnings, reports and administrative sanctions in connection with infringements in the cod fisheries north of 62ºN in the period The review will consist of four tables: Table 34 will consider how large a share the individual regional offices 681 represent of the total number of infringements that have resulted in warnings or a report. Table 35 will look at the ratio between number of warnings and number of reports for each regional office. Table 36 will provide an account of the Directorate of Fisheries overall use of administrative sanctions, while Table 37 will deal with the most common infringements and the ratio between the total number of warnings and the total number of reports for each of these infringement categories. Table 34 Share of infringements in cod fisheries north of 62ºN in the period , by regional office. Per cent Type of penalty RTO 682 RMR 683 RNO 684 STN 685 RTR 686 SSFG 687 RFI 688 Share of infringe 689 ments As shown in Table 34, there is substantial variation between the individual regional offices with respect to the share of infringements in the cod fisheries north of 62º N in the period in 678 The total number of foreign infringement cases in the FPZ is However, it must be borne in mind that there are only three cases of Norwegian vessels in the FPZ, and this is a very limited sample. 680 Statistics on warnings and reports come directly from the Directorate of Fisheries inspection database for the period in question. The overview of the use of administrative sanctions is based on a letter of 10 January 2007 from the Directorate of Fisheries. 681 This includes the Surveillance Service for Fishing Grounds and Sea Patrol Service North. 682 Directorate of Fisheries, Trøndelag region. 683 Directorate of Fisheries, Møre og Romsdal region. 684 Directorate of Fisheries, Nordland region. 685 Sea Patrol Service North. 686 Directorate of Fisheries, Troms region. 687 Surveillance Service for fishing grounds. 688 Directorate of Fisheries, Finnmark region. 689 Total number of infringements is

213 question. The figure for the Nordland region, which is the highest (30 per cent) is over ten times as high as the figure for the Trøndelag region (3 per cent), which is the lowest. However, the large variations must be viewed against the backdrop of the variations among the regions with respect to number of landings and catch quantity landed. If, for example, one considers the number of infringements per 1000 sales notes, the ratio is 0.23 for the Trøndelag and 0.42 for Nordland. If the number of infringements per thousand tonnes landed cod is considered instead, the ratio is 1.0 for the Trøndelag and 0.3 for Nordland. 690 Table 35 Share of warnings/reports in cod fisheries north of 62ºN in the period , by regional office. Per cent Type of penalty RTO RMR RNO STN RTR SSFG RFI Warnings Formal reports If the regional offices are viewed as a whole, the number of written warnings accounts for 63 per cent of penalties, and reports 37 per cent. However, Table 2 shows that there is great variation between the individual regional offices with respect to the ratio between warnings and written reports in the cod fisheries in the period in question. The percentage of reports received by the Surveillance Service for Fishing Grounds (SSFG), which is the highest (91), is more than thirty times as high as the figure for the Møre og Romsdal region (3), which is the lowest. 693 Table 36 The Directorate of Fisheries use of administrative sanctions in cod fisheries north of 62ºN in the period (in absolute figures) Penalty Rejection of applications/ revocation of permits for commercial activities 694 Rejection of applications/ revocation of licences for foreign vessels 695 Lapse of buyer approval 696 Imposition of fine for infringement Total No The data underlying these estimates are taken from the Directorate of Fisheries statistics on sales notes for the period in question. 691 Total number of infringements is Total number of infringements is See also section All cases concern a temporary revocation of a permit for commercial activities. For four of the vessels, the revocation was only for one or two months. 695 Licences were revoked for all vessels. For two of them, the revocation only applied for the duration of the year (2004). 696 This lapse lasted only one week. 209

214 Written warnings are used for less serious infringements. For serious infringements the Directorate of Fisheries can normally choose between an administrative and a penal sanction. 697 Table 36 shows the Directorate of Fisheries use of administrative sanctions in cases of infringement of the fisheries regulations in connection with cod fisheries north of 62ºN in the period The table shows that administrative sanctions have been used ten times in all in the period in question. In eight of these cases, it has only been a question of temporary sanctions, and only for brief periods of time. 699 By way of comparison, there were 97 reports in the same period of time. 700 Table 37 Most common infringements in cod fisheries north of 62ºN in the period and the Directorate of Fisheries penalties for them. Per cent 701 Infringement Share of total no. of infringements Incorrect keeping of catch logbook Discrepancy sales note/ inspected quantity Use of illegal equipment Illegal transshipment of catch Catch not reported Warnings Other infringements 702 Formal reports A review of the types of infringements that have triggered a warning or sanction shows that by far the majority of infringements are related to incorrect keeping of the catch logbook (see Table 37). At the same time, there is a clear distinction between these infringements on the one hand, and all other infringements on the other with respect to the ratio between warnings and reports. In catch logbook cases, warnings make up a clear majority of the penalties, while the opposite is the case for other infringements Police/prosecution authority and courts In light of statistics on reported cod cases in the period obtained from the Directorate of Fisheries and the Coastguard, the cases were identified in STRASAK. The statistics below are based on material on a total of 98 cases that can with reasonable certainty 697 If it is a question of the same infringement, it is not normally possible to use administrative and penal sanctions at the same time, as this would be double jeopardy. Source: Interview with the Directorate of Fisheries, 2 November For a further description of the different types of sanction, see section See also section See footnotes to the individual figures in Table The underlying data here are the same as for Table 34, i.e. a total of 261 infringements. 702 For example: breach of duty to notify, breach of duty to weigh, dumping of fish, lack of dispensation for harbour sales, vessels not registered, failure to complete sales note, failure to cooperate with/molestation of controller, breach of Section 45 of the Sea-Water Fisheries Act, illegal by-catch, illegal sale of fish and incorrect information on sales note. Each of these infringements accounts for from 0.4 to 0.8 per cent of the total number of infringements. 210

215 be regarded as concluded. 703 The statistical presentation must be considered in conjunction with Chapter 7.5 on challenges associated with sanctions and indictment in practice to provide a more complete picture. 1. Case outcome by type of infringement (statistical category) Table 38 shows the outcome of fisheries cases after they had been processed as criminal cases by main infringement category. The infringements are classified according to the relevant statistical categories used by the police. They have somewhat varying generality levels. The first group of cases is associated with statistics category 5410 Failed to keep catch logbook. Of these 30 cases, 26 ended with an accepted penalty notice (for a fine and/or confiscation) or a conviction. The next most frequent accepted penalty notices/convictions concern infringements associated with statistics group 5406 Mesh size rules, 5409 Duty to report, i.e. failure to observe the duty to report to the fisheries administration and sales organisation, and 5411 Sales note/takeover declaration, a total of 30 cases. The 18 cases that were dismissed belong to several different statistical groups, with 5409 Duty to report representing the largest number, with 7 cases. Table 38: Outcome of cases in conjunction with legal basis period Distribution of legal base (statistics group) by outcome Dismissed Outcome Accepted penalty notice/ ruling passed Acquittal Settled without criminal case 5410 Failed to keep catch logbook 5409 Duty to report Sales note/takeover declaration 5406 Mesh size provisions Sea-Water Fisheries Act Economic Zone Act Takeover declaration not produced 5405 By-catch provisions Maritime factors, misc Marking of fishing gear Refusal to disclose catch logbook 5449 Raw Fish Marketing Act Total Total 703 The figures are based on cases reported in obtained from the Coastguard and the Ministry of Fisheries in These cases were then selected in STRASAK by the Police Data and Materials Service as a basis for producing the statistics that are presented here. In this context, concluded means that a fine or penalty notice has been accepted, the case has been dismissed, the case has been decided without becoming a criminal case, there is a ruling, or there is an acquittal. Reported cases that are not defined as concluded are therefore not included in this presentation. It has not been possible, on the basis of data in STRASAK, to identify cases with respect to whether or not a judgement is legally binding. There may therefore be cases that the OAG defines as decided by a ruling in court which have been appealed, possibly with a different final outcome. The various sections in the presentation in Chapter also operate with different total number of cases. This is because there is not enough information in STRASAK on some cases for them to be included in the presentation. 211

216 2. Comparison of cases reported by the Directorate of Fisheries and the Coastguard with respect to case outcome The next table shows the distribution of cases reported by the Directorate of Fisheries and cases reported by the Coastguard with respect to case outcome. The table shows that none of the cases from the Coastguard were dismissed in the period Table 39 Comparison of cases the Directorate of Fisheries and the Coastguard, with respect to dismissal period Directorate of Fisheries Coastguard Dismissed not dismissed? Dismissed Accepted penalty Settled without notice/conviction Acquittal criminal case Total Total Case outcome by police district Table 40 shows the outcome of the cases, distributed by police district. The last code registered in the case is used as the basis. The table shows summarised case outcomes, distributed by district. It shows that Vestfinnmark and Midtre Hålogaland had most dismissed cases, with 29 per cent and 27 per cent, respectively, of the number of cases reported in the district during the analysis period. Troms police district had no dismissed cases, and 91 per cent of the cases ended with an accepted penalty notice or a conviction. Table 40 Outcome of cases distributed by police district period Which cases have been dismissed not dismissed? Total Accepted penalty Settled without Dismissed notice/conviction Acquittal criminal case Helgeland Inntrøndelag Midtre Hålogaland Salten Troms Vestfinnmark Østfinnmark Total Case outcomes for Norwegian and foreign cases, respectively Table 41 shows case outcomes for Norwegian and foreign cases registered in the analysis period, and which are defined as concluded. The table shows that the majority of infringements in cod cases, both Norwegian and foreign, were decided by acceptance of a penalty notice or conviction. This applied to 75 out of 98 cases. Ten of the 75 cases concerned a ruling of a fine and/or ruling of confiscation. All these cases were Norwegian. Of the four cases registered as acquittal, three were foreign. Eighteen of the cases, all of them Norwegian, were dismissed. Of these, 14 were dismissed because of insufficient evidence, one was time-barred and one was dismissed because no evidence of a criminal offence was found. Moreover, one foreign case was settled without prosecution. 212

217 Table 41: Outcome for Norwegian and foreign cases period Norwegian and foreign cases Total Norwegia n Foreign Dismissed Accepted penalty notice/conviction Acquittal Settled without criminal case Total Differences in average procedural times Norwegian and foreign cases Of the 91 registered cod cases, 79 concerned Norwegian citizens and 12 foreign. If a comparison is made of average procedural times for Norwegian and foreign cases (see Table 42), the procedural time seems to be substantially shorter for foreign than for Norwegian cases 145 days compared with 393 days. Table 42 Average total procedural time for Norwegian and foreign cases period Norwegian and foreign Average number cases of days Number of cases Norwegian Foreign Total Total procedural times for all cases in 2003, 2004, 2005 A review of developments in total procedural times for the 91 registered cases for the three years covered by analyses shows them to be relatively stable in 2003 and From 2004 to 2005, however, there was a decline of an average of 154 days, i.e. a reduction of 38 per cent. Table 43 Total days for years Year Average number of days Number of cases Total Cases from the Directorate of Fisheries vs the Coastguard with respect to procedural time Table 44 compares the 13 registered cod cases from the Coastguard and 78 registered cases from the Ministry of Fisheries with respect to procedural time. The overview shows that there is a major difference between the cases. Cases from the Directorate of Fisheries take twice as long before a final decision is available as cases from the Coastguard 390 days on average, compared with 183 days. 213

218 Table 44 Total days comparison between Directorate of Fisheries and Coastguard period Directorate of Fisheries Average number of days Number of cases Coastguard Total Differences in average procedural time for cases reported to different police districts On the basis of the available data, there are 91 cases where the register of criminal cases has information on the total number of days that have passed since a report was filed in the police district until the case is decided by the public prosecutor or a court. The table below shows the average procedural time for cases reported to the ten northernmost police districts. The tables show that there are differences between the districts. Cases reported to Helgeland police district had the shortest procedural time of 166 days. However, this figure is based on only one case. Table 45 Total no. of days for the 91 cases where Total days has been registered period District Average number of days Number of cases Helgeland Inntrøndelag Midtre Hålogaland Salten Troms Vestfinnmark Østfinnmark Total Cases reported to Vestfinnmark police district have the longest average procedural time of 454 days. This district also had most cases 22. A comparison of the four districts with most cases shows some major differences. Cases reported to Østfinnmark police district come out best, with 239 days, and Vestfinnmark worst, with 454 days. The statistical presentation does not make a distinction on the basis of the complexity of cases, which may have a bearing on the differences in procedural time. 9. Average time cases remain with investigators The lengths of time that cod cases have been with an investigator in the police district, based on those of the 95 cod cases for which there are records, shows that this period varies from 21 days in Helgeland police district to 216 days in Midtre Hålogaland (see Table 46 below). However, Helgeland is also registered as having only one case during the period, compared with Midtre Hålogaland s 21. If we look at the four districts that are registered as having around 20 cases, we see that the time cases remain with the investigator is four times as long in Midtre Hålogaland as in Vestfinnmark and Østfinnmark. 214

219 Table 46 Number of days with investigator period District Average number of days Number of cases Helgeland 21 1 Inntrøndelag 37 2 Midtre Hålogaland Salten 77 7 Troms Vestfinnmark Østfinnmark Total Average time from indictment to ruling In 91 cod cases, the number of days from the time a charge is filed until it is finally decided has been recorded (see Table 47 below). As the table shows, the Inntrøndelag district is conspicuous with days on average for the two cases registered in the period, while Østfinnmark comes out best with an average of 121 days for its 20 registered cases. The average for all districts is 178 days. Table 47 No. of days from indictment to ruling period District Average number of days Number of cases Helgeland Inntrøndelag Midtre Hålogaland Salten Troms Vestfinnmark Østfinnmark Total Challenges associated with sanctions and prosecution in practice Authorities responsible for control and enforcement at sea (the Coastguard) General The Coastguard has routines for inspections and quality assurance in connection with arrests of or reports filed against fishing vessels. 705 The master of the individual Coastguard vessel will always consult with the head of the squadron before a report is written and/or an arrest is made. It is also a matter of routine to check against previous cases in order to ensure the most consistent practice possible. The head of the squadron also goes through all reports before they are sent to the police and prosecution authority. As a final quality assurance step, it may be necessary to consult the public prosecutors of Troms and Finnmark regarding the actual and legal basis for the report/arrest. In situations involving arrest in the Fisheries Protection Zone around Svalbard, other authorities will also be consulted, according to CGSN 704 This figure may have been incorrectly entered in STRASAK. 705 Interviews with CGSN, 16 August and 21 November

220 primarily the Chief Coastguard, the Ministry of Defence and the Ministry of Foreign Affairs. 706 CGSN maintain that they have a generally good working relationship with the police and public prosecutor and the Directorate of Fisheries in connection with the handling of fisheries matters. 707 In addition to the routines for conducting inspections and consultations with relevant authorities in connection with arrests/reports, there are also written guidelines which indicate forms of penalty, with tolerances where relevant, for infringements committed by Norwegian and foreign vessels at sea in connection with fisheries operations in the widest sense ( the Enforcement Guidelines). According to CGSN, these are used regularly and function well. 708 There is a generally high level of awareness in the Coastguard concerning the need to maintain and further develop expertise in the treatment of fisheries cases. As a result special inspectors courses are arranged with the focus on fisheries law and investigation methods. Lecturers include police personnel. When a report/arrest case comes up in court, these proceedings are also followed with a view to acquiring new knowledge and experience. 709 The point of departure for CGSN is that all infringements that are detected shall be pursued. As a general rule, CGSN also maintain that they deliver a good product every time they make a report. 710 Principal challenges In the Coastguard s assessment of the principal challenges related to sanctions and prosecution in practice, the following aspects are those that appear most immediate: 1) enforcement in the Fisheries Protection Zone around Svalbard; 2) different follow-up practice for infringements committed by foreign and Norwegian vessels; 3) the police and prosecution authorities prioritisation of and routines for handling fisheries cases; 4) sanctions for repeated and/or particularly serious infringements, 5) securing of evidence in discard cases. 1) Enforcement in the Fisheries Protection Zone around Svalbard (FPZ) Fisheries regulations have traditionally been challenged to a greater extent in the FPZ by other countries fishing vessels, particularly Russian vessels, than they have been in the NEZ and the Jan Mayen Zone (JMZ). 711 In the case of Russian vessels in particular this has primarily taken the form of breaches of the reporting provisions, which is also the main reason for the high number of warnings to Russian vessels in the FPZ. 712 This in turn must be seen in direct connection with the fact that, according to CGSN, these vessels have been ordered by Russian authorities not to report to the Norwegian authorities in the FPZ. 713 Moreover, the Coastguard has discovered a number of serious infringements in the FPZ in recent years. No doubt these infringements also took place earlier, but there was not the 706 Interviews with CGSN, 21 November Interviews with CGSN, 21 November Interviews with CGSN, 21 November Interviews with CGSN, 21 November Interviews with CGSN, 21 November Interviews with CGSN, 21 November See section Annual reports of CGSN for 2003, 2004 and

221 capacity then to conduct thorough surveillance in the FPZ, nor was there adequate knowledge about what was going on. 714 The requirements regarding evidence are also more stringent in the FPZ than in the NEZ according to CGSN. For example, evidence of fish discards from a foreign vessel in the FPZ may result in a warning, whereas the same evidence in the NEZ may be sufficient to have the vessel arrested. 715 The statistical findings that have been made on the basis of data from CGSN s inspection database for generally, for all fisheries, and for cod fisheries in particular also provide a clear indication of different enforcement practice in the FPZ and the NEZ. 716 In general, the Coastguard Staff maintains that it is unfortunate that regulations have been introduced in the FPZ which cannot be fully enforced. 717 Moreover, enforcement in the FPZ can be more complicated and time-consuming than in the NEZ. In the NEZ and JMZ, it is the master of the individual Coastguard vessel who following ongoing contact with the head of the squadron makes a final decision as to whether a vessel should be arrested. In the FPZ, however, the procedure is more complex because, according to CGSN, consultations with more authorities are required first and foremost the Chief Coastguard, the Ministry of Defence and the Ministry of Foreign Affairs before an arrest is made. In addition, arrests in the FPZ and JMZ will be generally more resource-consuming for the Coastguard than arrests in the NEZ, since the sailing time from the former zones to the relevant port in Norway and back again is as a rule a good deal longer than the sailing time from fishing grounds to and from ports within the NEZ. 718 At the same time CGSN points out that it is important to be aware that each infringement case is different and must be considered independently irrespective of where it takes place. Some caution should therefore be exercised with respect to generalising on the basis of the zone in question. The principle of equal treatment is also a fundamental principle. Although it is not always easy to apply across zones, CGSN feels basically that foreign vessels are at least handled equally within the individual zones. In the view of CGSN, any differences in treatment compared with Norwegian vessels favour the foreign vessels, as the former are treated with equal severity irrespective of which zone (NEZ, JMZ, the FPZ, international waters) they fish in. 719 Moreover, a certain change in pattern has been observed following the arrest of the Russian trawler Chernigov in April Since then the majority of Russian vessels have respected the regulations and the Coastguard s authority in the FPZ to a greater extent than previously, not least with respect to areas that they are requested to avoid 720 and closed areas. The other arrests in the FPZ in the last five years have reinforced this trend. Moreover, the general goodwill that the Coastguard has built up through its technical and medical assistance to the fishing fleet has also strengthened respect for and the legitimacy of the Coastguard. The 714 Interview with CGSN, 16 August Interview with CGSN, 16 August See section Interview with the Coastguard Staff, 5 December Interview with CGSN, 21 November Interview with CGSN, 21 November I.e. areas that are not formally closed through a regulation but where the Coastguard requests the fleet to fish elsewhere because of the large proportion of undersized fish. 217

222 Elektron case in October 2005 marked another if less pronounced change in pattern however. Since then, the distinction between those foreign vessels that generally respect the regime in the FPZ and those that do not has become sharper. The latter are now experienced as being even more aggressive in their behaviour, and even less cooperative in relation to the Coastguard s inspectors than they have been in the past. 721 The Elektron case has also resulted in some clearer lines with respect to execution of enforcement authority and penalties in the FPZ ) Different follow-up practice for infringements committed by foreign and Norwegian vessels In the view of CGSN, fisheries cases in which foreign vessels are involved are generally treated more rapidly than similar cases with Norwegian vessels. Because of the risk of spoiling the evidence and/or evasion, and also to ensure payment of fines and confiscation of assets, foreign vessels are almost always arrested. Out of consideration for the arrested vessel, arrest cases are to be treated as rapidly as possible (two-three days), which means that at the outset it is always the Coastguard s investigation that forms the basis for criminal proceedings against foreign vessels. 723 By contrast, Norwegian vessels are almost never arrested or subjected to temporary fines or confiscation, and the police hold their own investigation after the Coastguard has filed a report. The Coastguard s case preparations are identical, however, irrespective of whether the case is foreign or Norwegian. In both cases, a complete package is delivered to the police and prosecution authorities, including a description of the factual and legal basis for the charge, and evidence/documentation of the reported offence. In principle, there is therefore no reason why the police and public prosecutor require a longer investigation and/or procedural time for Norwegian than for foreign vessels. 724 Another difference between arrests of foreign vessels and reports on Norwegian vessels is that in the former case CGSN consults with the public prosecutors of Troms and Finnmark with respect to which police district it is most expedient to arrest the vessel in, while the point of departure for Norwegian vessels is that the report is sent to the police district to which the vessel belongs. Depending on which police district it is, this may also lead to the investigation and/or procedural time for Norwegian vessels being longer than for foreign. As a result, CGSN suggests that perhaps cases involving Norwegian vessels should also be channelled to particular, selected police districts that have special expertise and experience in handling fisheries cases ) The police and public prosecutors prioritisation of and routines for handling fisheries cases CGSN has positive experience of cooperating with the police and public prosecutor in fisheries cases, and also has a good impression generally of how the individual police district prioritises and handle these cases. However, some districts are better than others, and Tromsø distinguishes itself particularly positively, which according to the Coastguard must be partially attributed to extensive continuity among both the lawyers and the investigators. In particular, CGSN maintains that continuity among the lawyers is a key factor with respect to 721 Interview with CGSN, 21 November Interview with CGSN, 16 August Interview with CGSN, 21 November Interview with CGSN, 21 November Interview with CGSN, 21 November

223 both the progress and the final outcome of the case. If there are competent and experienced fisheries lawyers in the district in question, it will also help to give these cases generally higher priority. Similarly, the absence of such competence and experience may lead to fisheries cases receiving lower priority. 726 When it comes to the public prosecutor s further follow-up and quality assurance of fisheries cases, the Coastguard has generally good experience as regards the cases they have reported themselves. This must be seen against the backdrop of CGSN s good working relationship with the public prosecutors for Troms and Finnmark and this office s ultimate responsibility for vessel cases, i.e. infringements committed at sea, in Northern Norway. As CGSN sees it, the quality assurance inherent in this system has also been important in ensuring that cases in the different districts are treated as equally and consistently as possible. 727 At the same time, CGSN regards it as a problem that the prosecuting authority does not appear to have any system or routines for learning and gaining experience from individual cases that slip through the legal system, so as to avoid making the same mistakes again. CGSN finds it regrettable, not least, that a firmer approach has not been taken in the individual cases that at the outset have been fairly obvious winner cases for the prosecuting authority, but that have nevertheless not been won in court ) Sanctions for repeated and/or particularly serious infringements CGSN believes that as a rule fines and confiscation orders have gradually reached a satisfactory level in relation to the seriousness of the infringements. Furthermore, in the general experience of CGSN, it is doubtful whether foreign vessels meet with more stringent sanctions than Norwegian vessels in similar cases. At the same time, there is no easy solution in legal practice for determining an appropriate confiscation level. The prosecuting authority acts on the general principle that the confiscation level should be set at 1.5 times the catch value, but so far the Supreme Court has not been willing to give a definite answer to this. Thus the conclusion the court arrives at is still relatively open. 729 Although the level of fines and confiscation of assets generally has reached a satisfactory level, if each infringement is considered individually, Coastguard North still believes that they may not have a strong enough preventative effect on some of the worst repeat offenders. If, for example, a vessel is taken only every tenth time, the fine and confiscation imposed for the one offence will not necessarily be incentive enough to become law-abiding if the earnings on the other nine infringements are high enough. CGSN accordingly maintains that temporary or permanent confiscation of fishing authorisation should also be considered as a sanction in particularly serious and/or repeated offences by Norwegian fishing vessels. 730 Pursuant to Section 6 of the Regulations relating to fishing and hunting operations by foreign nationals in the Economic Zone of Norway, the Norwegian authorities also have the right to refuse or to revoke fishing licences for foreign fishing vessels that have taken part in IUU fishing. 731 As a rule, refusal to issue a licence or the revocation of a licence is due to the vessel in question appearing on a blacklist, which is prepared by either a regional fisheries 726 Interview with CGSN, 21 November Interview with CGSN, 21 November Interview with CGSN, 21 November Interview with CGSN, 21 November Interview with CGSN, 21 November See also section

224 management organisation or the Directorate of Fisheries. When it comes to Russian overfishing in the Barents Sea in particular, however, CGSN has been sceptical about using such a list and licence regime against Russian vessels that over-fish their quota. 732 CGSN gives the following grounds for its scepticism. First, it is generally difficult to secure official confirmation from Russian authorities that a specific Russian vessel has over-fished its quotas. Second, black-listing of the vessels in question could lead to court cases and demands for the hand-over of the documentation that forms the basis for the listing. This could make the work of the Russian prosecuting authorities more difficult in the event of a court case in Russia. Third, refusal to issue a licence or the revocation of a licence for fishing in the NEZ could lead instead to increased fishing activity in the Russian economic zone (REZ) and the Grey Zone, which is not very desirable with respect to the exploitation pattern and in the interests of resource control ) Securing of evidence in discard cases According to CGSN, cases concerning fish discards are generally the most difficult concrete infringements to prove and/or document. As a rule, the discard process must have been photographed or filmed while it was in progress for it to hold as evidence in court. Experience indicates that the pelagic sector accounts for most fish discards, but CGSN maintain that there are also discards although to a lesser degree in the whitefish sector. 734 With today s price system, the possibility that discard quantities are larger than what has been detected cannot be excluded also among Norwegian vessels. The price per kilo for small fish is lower than for larger fish, and not many fishermen want to use their quota on fish that command a lower price. 735 The Coastguard tries to prevent this as far as possible through careful surveillance of areas containing a large proportion of small fish Authorities that are responsible for control and enforcement on land (the Directorate of Fisheries) General The Directorate of Fisheries has routines in place for inspections and for quality assurance of fisheries cases. 737 According to the Directorate of Fisheries, the Enforcement guidelines is a key tool for ensuring equal treatment of similar cases, irrespective of which regional office is dealing with a case. The Directorate of Fisheries also places great emphasis on building up the expertise of the inspectors and making procedures more professional. This takes place through annual gatherings among regional offices, and through courses for executive officers in preparing cases that are to undergo further processing in the legal system and the administration. In recent years, personnel with police and investigation expertise have also been recruited. The Directorate of Fisheries centrally also has a general function as quality assurance body, as it is the appeal authority for the processing of the individual regional 732 Interview with CGSN, 21 November Interview with CGSN, 21 November Interview with CGSN, 21 November Interview with CGSN, 16 August Interview with CGSN, 21 November Cf. Interview with the Directorate of Fisheries, Møre og Romsdal region, 3 November 2006; interview with the Directorate of Fisheries, Nordland region, 20 November 2006; interview with the Directorate of Fisheries, Troms region, 13 November 2006; interview with the Directorate of Fisheries, Finnmark region, 14 November 2006; interview with the Directorate of Fisheries head office, 11 December

225 offices. Questions are also taken up on an ad hoc basis through circulars, instructions, s etc. both collectively and with the individual executive officer. 738 The Directorate of Fisheries has generally found that their follow-up of reports vis-à-vis the police district in question has had a positive effect on the progress of a case. As a result, and largely in the light of positive experience of follow-up vis-à-vis Troms police district, more general routines have also been drawn up for this follow-up. 739 In general, the Directorate of Fisheries maintain that they have a good working relationship with the Coastguard on control and enforcement questions. 740 However, their experience of cooperating with the police and prosecuting authority in this area is a little more varied. 741 Principal challenges In the Directorate of Fisheries assessment of the principle challenges posed by sanctions in practice, the following cases are those that appear most immediate: 1) cases based on sales control; 2) the police and prosecuting authority s prioritising of and expertise in fisheries cases; 3) use of administrative sanctions; 4) ensuring uniform and consistent treatment of violations. 1) Cases based on sales control These are cases where quota infringements are discovered after the fish has been sold and the sales note signed. According to the Directorate of Fisheries, these cases are normally the biggest, the most complicated to investigate and document, and hence also the most difficult to sanction. They may, for example, be cases which are a result of a sophisticated collaboration between fisherman and buyer and/or where quota overruns take the form of small drips over a long period of time. If it is additionally necessary to carry out a document inspection in the next link in the sales chain to secure evidence, the process becomes even more complicated and resource-intensive. As a result, these cases are normally the most difficult to bring to court. 742 Reference is also made to the description of sales control in section and to that of the regulations associated with such control in section ) The police and prosecuting authority s failure to give priority to and inadequate expertise in fisheries cases It is very important for the Directorate of Fisheries to have a good working relationship with the police and prosecuting authorities with a view to resolving and taking final decisions in fisheries cases. The further along the value chain one comes, the more important this cooperation becomes, as cases become that much more complex and resource-consuming to investigate. However, the Directorate of Fisheries has mixed experience of the police and prosecuting authority s prioritising of fisheries cases and of their expertise with respect to dealing with such cases Interview at the Directorate of Fisheries head office, 2 November Interview at the Directorate of Fisheries head office, 2 November Cf. Interview with the Directorate of Fisheries, Møre og Romsdal region, 3 November 2006; interview with the Directorate of Fisheries, Nordland region, 20 November 2006; interview with the Directorate of Fisheries, Troms region, 13 November 2006; interview with the Directorate of Fisheries, Finnmark region, 14 November 2006; interview with the Directorate of Fisheries head office, 11 December Interview at the Directorate of Fisheries head office, 2 November Interview at the Directorate of Fisheries head office, 2 November Interview at the Directorate of Fisheries head office, 2 November

226 When it comes to cases involving reports/arrests at sea, and reports in most cases discovered by onshore inspections, Norwegian vessels and fish landing facilities are only investigated by the police after a report has been made. In the experience of the Directorate of Fisheries, there are substantial differences between police districts in terms of the priority given to investigating such cases. As a result, even the simplest cases involving Norwegian vessels or fish recipients may be difficult to prosecute because they drag on in time. This causes problems since investigation is an important part of the sanction regime. Nevertheless, the Directorate of Fisheries stresses that the police and prosecuting authorities have become generally more adept at investigating and prosecuting this type of case in recent years, although there are still certain differences from district to district. 744 The situation regarding fish sales cases has not improved very much in recent years, however, although a few police districts distinguish themselves positively. According to the Directorate of Fisheries, this may be partly attributed to the complexity of these cases. They require greater use of resources and prioritisation by the police and prosecuting authorities, also in respect of the use of enforcement, which makes it even more difficult to place them at the top of the pile. As a result, the Directorate of Fisheries frequently finds that it is receiving least assistance from the police and prosecuting authority in the cases where this assistance is most needed. 745 Another factor behind the inadequate follow-up of fisheries cases by the police and prosecuting authorities, according to the Directorate of Fisheries, appears to be the Director General of Public Prosecution s annual priorities directive, which largely concern penal frameworks for various offences. Violations of the fisheries regulations will normally be misdemeanours, which come at the bottom of this directive. Following a meeting with the Minister of Fisheries and Coastal Affairs on 8 June 2005 at which new measures against economic and environmental crime in the fisheries industry were discussed, the Director General of Public Prosecution was to prepare a separate circular on fisheries cases, but this has not yet been done. As the Directorate of Fisheries sees it, such a circular would make a positive contribution in terms of strengthening the police and prosecuting authorities prioritising of such cases. Economic crime in the fisheries and aquaculture industry is in fact mentioned separately in the Government s action plan of 9 June 2004 for combating economic crime, but according to the Directorate of Fisheries it was only included in the document at the very end of the drafting process. The Directorate of Fisheries takes this as an indication that fisheries crime is not yet regarded in the same way as other economic crime. 746 These challenges were summed up as follows in a letter from the Directorate of Fisheries to the Ministry of Fisheries and Coastal Affairs on 14 July 2005: To the Directorate of Fisheries it appears that a number of police districts where fisheries is a majority industry do not invest enough, in terms of either expertise and resources, to handle the crime taking place in the industry. This is counter to the intentions of the Government action plan against economic crime, and undermines the work of the control and enforcement authorities in a number of ways, a fact to which media headlines bear witness. 744 Interview at the Directorate of Fisheries head office, 2 November Interview at the Directorate of Fisheries head office, 2 November Interview at the Directorate of Fisheries head office, 2 November

227 Statements from each of the four northernmost regional offices in the Directorate of Fisheries go a long way towards confirming this picture. 747 As mentioned initially, the Directorate of Fisheries has generally found that their follow-up of reports vis-à-vis the police district in question has had a positive effect on the progress of a case. A key part of the follow-up routines that have been developed is to send a reminder of current cases to all police districts every three months. In addition there is a little about reminders concerning reported cases in the Directorate of Fisheries own control manual. 748 Practice in this respect appears to vary from region to region, however. In a questionnaire among regional offices north of 62ºN, two of five responded that they very seldom follow up the prosecuting authority s processing of their reports. 749 One of the regional offices, Finnmark, states that their failure to follow up is primarily attributable to limited resources and a lack of capacity. 750 As far as the Directorate of Fisheries is aware, fisheries cases are no longer dismissed as time-barred since the penal framework in the Sea-Water Fisheries Act was raised from six months to two years in connection with the amendment of 15 June 2001, since this meant that the period of limitation was raised from two to five years (cf. Section 67 of the Penal Code). Before this amendment, however, it was not unusual for cases that the police and prosecuting authority regarded as misdemeanours to be dismissed as time-barred. 751 In the view of the Directorate of Fisheries, the prosecuting authorities own follow-up and quality assurance of fisheries cases has functioned reasonably well for a long time in respect of reports concerning fishing vessels ( at-sea cases ), as the public prosecutors for Troms and Finnmark have specific responsibility for follow-up and quality assurance of the individual police district s treatment of cases of this type in Northern Norway. There is no equivalent formalised follow-up and quality assurance of the processing of reports concerning onshore facilities ( land cases ), which is unfortunate in the view of the Directorate of Fisheries. Recently, however, the public prosecutors of both Troms and Finnmark and Nordland have been observed to begin following up land cases to some extent on a more informal basis, which the Directorate of Fisheries finds very positive ) Use of administrative sanctions 753 Written warnings are used up to a certain level of infringements. For serious infringements the Directorate of Fisheries can normally choose between using an administrative and a penal sanction. 754 To date, the Directorate of Fisheries has used administrative sanctions far less 747 Cf. interview with the Directorate of Fisheries, Møre og Romsdal region, 3 November 2006; interview with the Directorate of Fisheries, Nordland region, 20 November 2006; interview with the Directorate of Fisheries, Troms region, 13 November 2006; interview with the Directorate of Fisheries Finnmark region, 14 November 2006; QuestBack survey covering the regional offices of the Directorate of Fisheries north of 62 N, November The Directorate of Fisheries head office, 2 November QuestBack survey of the Directorate of Fisheries regional offices north of 62ºN, November Interview with the Directorate of Fisheries, Finnmark region, 14 November 2006; QuestBack survey covering the Directorate of Fisheries regional offices north of 62ºN, November Interview at the Directorate of Fisheries head office, 2 November Interview at the Directorate of Fisheries head office, 2 November For a more detailed description, see sections and Because a double penalty may not be imposed, however, both may not be used at the same time if it is a question of the same violation. Cf. interview at the Directorate of Fisheries head office, 2 November

228 than reports for violations of the fisheries regulations. Moreover, in most cases where administrative sanctions have been used, it has also been a question of temporary sanctions of short duration (temporary revocation/lapse of permits for commercial operations/licences/buyer authorisations). 755 The Directorate of Fisheries gives several reasons for this: first, these sanctions are not always regarded as the most appropriate form of penalty in a number of fisheries cases, particularly in major cases; second, they may raise a number of problems with respect to sentencing. Some of the cases based on landing inspections, and all cases based on sales inspections involve both fisherman and receiver/buyer, while the authorisations for administrative penalties do not always fully cover the actions of both. Nor do they provide a legal basis for confiscating property from both in all cases. This makes it difficult to assess an administrative penal reaction that hits both actions equally. Third, the use of administrative sanctions may imply unpredictability since these cases always run a certain risk of becoming political issues. The more severe the administrative sanction, for example revocation of permits for commercial operations, the more politicised the case in question may become. 756 In the case of foreign vessels that engage in IUU fishing, administrative sanctions in the form of refusal/revocation of licences 757, possibly combined with blacklisting, are among the few sanctions the Norwegian authorities have at their disposal if the flag state does not fulfil its obligations as such. In the period , the Directorate of Fisheries sent a total of 81 cases to the Russian authorities, claiming that it could be documented that the vessel in question has taken part in or contributed to overfishing of cod and in some cases also haddock. To date, the Directorate of Fisheries has not received any official confirmation from the Russian authorities that a single one of these cases has culminated in final execution of a penalty in the form of a fine or imprisonment in Russia. At the same time, the Directorate of Fisheries states that they do not have any confirmation, official or unofficial, from the Russian authorities that the Russian fishing licences/quota allocation letters or quotas upon which the Directorate of Fisheries bases its comparison with actually landed fish, are not correct. Nor have they received any feedback to the effect that their assumptions are incorrect, and no evidence of any kind has been presented to disprove overfishing of quotas. 758 However, none of the vessels in question have so far been refused a licence or had their licence revoked 759 and none have been blacklisted for this reason. According to the Ministry of Fisheries and Coastal Affairs, this practice must be viewed in light of the fact that up to October 2006 monthly overviews had not been received for the quotas of the various Russian vessels, and so far no information of any significance has been 755 See section Interview at the Directorate of Fisheries head office, 2 November Cf. Section 6 of the Regulations relating to fishing and hunting operations by foreign nationals in the Economic Zone of Norway. According to the Directorate of Fisheries, in principle only revocation of a licence during the season may be regarded as a penal sanction. Fishing licences may only be issued to foreign vessels for one year at a time, and this issue takes place purely at the discretion of the Directorate of Fisheries. This principle is restricted through agreements with other countries and long practice. The individual foreign fishing vessel therefore has no automatic right to licence renewal from year to year. At the same time it is clear that both revocation and denial of a licence may be experienced as a sanction by the foreign vessel in question, and it may thereby have a preventive effect in relation to foreign violators. Source: interview with the Directorate of Fisheries head office, 2 November Letter of 31 January 2007 from the Directorate of Fisheries. 759 Letter of 10 January 2007 from the Directorate of Fisheries. See also section

229 received from the Russian authorities as to how much the individual Russian vessel actually has harvested at a given time in or after the quota year. The Ministry of Fisheries and Coastal Affairs also underscores the objective of cooperation with Russia, including the opportunity to allow Russian authorities to discharge their responsibilities as flag state, as another factor. Finally, the Ministry of Fisheries and Coastal Affairs stresses that the Directorate of Fisheries blacklist, including its basis and objective, are not geared to the new challenges presented by IUU fishing in recent years. 760 In order to meet these new challenges, the Ministry of Fisheries and Coastal Affairs has therefore drawn up new rules in Sections 8 and 9 of the Act relating to a prohibition against fishing, and Section 4 of the Sea-Water Fisheries Act. These amendments were adopted by the Storting on 5 December The new rules extend the legal basis for denying access to Norwegian ports, support services etc. The authorisations also make it possible to lay down regulations that allow for the preparation of separate lists with various degrees of administrative measures targeting vessels that take part in IUU activities, including Russian vessels. According to the Ministry of Fisheries and Coastal Affairs, new regulations for the implementation of these provisions will shortly be circulated for comments ) Ensuring uniform and consistent treatment of violations As described above, in principle the Directorate of Fisheries has relatively extensive routines for quality assurance of fisheries cases and for ensuring equal treatment of similar cases, irrespective of which regional office is processing the case. At the same time the statistical findings made on the basis of data from the Directorate of Fisheries inspection database for on cod fisheries north of 62ºN show substantial variations in enforcement practice among the individual regional offices, including Sea Patrol Service North (SPSN) and the Surveillance Service for Fishing Grounds (SSFG). There may be many reasons for this. If, for example, one considers SSFG, which has by far the highest percentage of reports in relation to the number of violations (90.9 per cent) 762, it must be clearly borne in mind that this surveillance authority operates quite a different type of control activity from the five land-based regional offices. To explain the high report figure, the SSFG itself points out that most of the concrete reports concern use of illegal gear, which is relatively easy both to detect and to prove. The SSFG also maintains generally that being in place in the fishing grounds where it happens, when it happens, often makes it easier to detect some violations than it would be through subsequent inspections of vessels or landings. 763 At the same time, the possibility that these variations may also have some connection with the Directorate of Fisheries routines for handling fisheries cases cannot be excluded. For example, the regional offices in Finnmark (RFI) and Møre og Romsdal (RMR) both carry out land-based inspections, but there are still major differences in the percentages they report (54.8 per cent and 2.9 per cent, respectively). 764 Both regional offices mention the challenges with respect to making discretionary judgements. 760 Letter of 21 February 2007 from the Ministry of Fisheries and Coastal Affairs. 761 Letter of 21 February 2007 from the Ministry of Fisheries and Coastal Affairs. 762 See also section Telephone interview with Jens Petter Hansen of the Surveillance Service for Fishing Grounds, 23 January See also section

230 RMR has pointed out that extensive judgement must be used in applying the Enforcement guidelines. It has been maintained that it is very important to link cases to a motive, and this is central to the assessment of what decision to take. The challenge is therefore to demonstrate the probable motive for a violation of the rules, not least in cases reported by the regional offices. Sometimes it is difficult to make a decision, and then the regional offices may consult with the Directorate of Fisheries head office or with the Coastguard. 765 At the same time, however, RMR maintains that clarifications from the head office about enforcement questions are sometimes not prioritised and that coordination of enforcement among the regions by the head office (Bergen) could be better. RMR therefore believes that the head office should arrange for internal audits of the regional offices work, not least in order to ensure equal treatment. 766 Like RMR, RFI points out that judgement has to be used with respect to the Enforcement guidelines, and that these guidelines are ambiguous in a number of areas. RFI maintains that this is natural since cases vary considerably, and some operators may have a history that has a bearing on matters. RFI also stresses that the percentage range laid down in the guidelines with respect to discrepancies between the catch logbook and the sales note must be viewed against the backdrop of the quantity delivered. At the same time, RFI points out that this relationship is not clearly defined and that it is important that the regions coordinate their practice in this respect. 767 According to RFI, they seldom receive feedback on the decisions made, and are therefore uncertain whether the Directorate of Fisheries head office arranges for adequate quality assurance of the individual regional offices processing of fisheries cases. RFI also maintains that databases and archive systems are not very suitable for providing an overview of comparable cases, which is partly due to the fact that up to now the archive system has had a block to prevent the retrieval of cases from other regions The police and the prosecuting authority A good set of rules and regulations with adequate sanction options and swift and appropriate penalties for infringements are important tools for the police and prosecuting authorities in their handling of fisheries cases. In addition, a good working relationship between the fisheries management and the police and prosecuting authority are crucial for combating irregularities in the industry. 769 The police receive annual circulars from the Director General of Public Prosecution with objectives and priorities for the processing of criminal cases. These include central and country-wide priorities for the initiation and execution of investigation of certain types of cases. Since 2004 economic crime and serious environmental crime have been on this list. The circular states that the prioritised cases shall be given precedence when there is a shortage of resources. The cases shall be resolved as far as possible, and unnecessary waiting periods shall be avoided by both investigators and lawyers. 770 The public prosecutors have 765 Interview with the Directorate of Fisheries, Møre og Romsdal region, 3 November QuestBack survey covering the Directorate of Fisheries regional offices north of 62ºN, November Interview with the Directorate of Fisheries, Finnmark regional office, 14 November QuestBack survey covering the Directorate of Fisheries regional offices north of 62ºN, November Proposition no. 1 to the Storting ( ) Ministry of Fisheries and Coastal Affairs, p Circulars RA , p. 8, and RA , page 9 from the Director General of Public Prosecution. 226

231 acknowledged to the police that fisheries cases must sometimes be regarded as serious and hence classified as prioritised economic crime. 771 a) Police districts 772 The area north of 62ºN comprises ten police districts. 773 They were requested through a questionnaire from the OAG to give their views of the effect of hypothetical central means of handling fisheries cases, including authorisations for and actual use of various types of penalties and penalty frameworks, police cooperation with relevant agencies and police routines for their own processing of cases. The police districts views regarding penalties and penalty frameworks The OAG s questionnaire shows that there are varying views of whether the different types of penalties and penalty frameworks that can be used in fisheries are appropriate/sufficiently broad to act as a deterrent to criminals and potential criminals. Five police districts believe the penalties and penalty frameworks that can be used have a deterrent effect. Two police districts believe the penalties and penalty frameworks that can be used do not have a deterrent effect. Three police districts are uncertain about the effect. The group of police districts that do not believe there is a deterrent effect point out that a penalty level that would have a deterrent effect would not be accepted in the legal system, and that the risk of detection is not in proportion to the consequences. The impression of the police is that most parties take a risk. If they are caught, the penalty is only a foreseeable cost to them which the shipping company pays. With regard to the question of whether sentences in fisheries cases are sufficiently severe to have a deterrent effect on a criminal or potential criminal, the survey shows that seven of ten police districts do not believe there is a deterrent effect, or are uncertain about the effect. Three police districts do not believe that sentences have a deterrent effect. Four police districts are uncertain about the effect. Three districts believe that sentences have a deterrent effect. Some respondents in police districts that do not believe there is a deterrent effect point out that the fisheries sector is a part of the business sector where large sums of money are at stake. They maintain that the balance between risk of detection and a possible penalty on the one hand and of the potential profit for the same violation on the other probably swings in favour of the latter The account is based on a letter of 18 December from the office of the public prosecutor for Nordland county to the OAG. 772 The presentation in Chapter a) is based on the Director General of Public Prosecution s questionnaire to the ten northernmost police districts, 20 November Østfinnmark, Vestfinnmark, Troms, Midtre Hålogaland, Salten, Helgeland, Nord-Trøndelag, Sør-Trøndelag, Nordmøre og Romsdal, and Sunnmøre police districts. 774 Response to the OAG s questionnaire to the ten northernmost police districts, 20 October

232 The police districts assessment of cooperation with other agencies 775 a. Cooperation with the Directorate of Fisheries The police districts are generally satisfied with their cooperation with the Directorate of Fisheries. Eight of ten police districts feel that cooperation with the Ministry of Fisheries on fisheries cases functions satisfactorily or very satisfactorily. When it comes to the question of whether cases that are reported by the Directorate of Fisheries are well documented, however, the survey shows that there are varying views. Four of ten police districts believe that the cases that are reported by the Directorate of Fisheries are well documented. Two police districts partly agree. Three police districts partly disagree. One police district neither agrees nor disagrees. The group of police districts that does not entirely agree that reported cases are well documented cites as an example that the directorate may be in possession of several pictures or documents with a bearing on the case which they do not send to the police district. It is also pointed out that the Directorate of Fisheries has poor follow-up of its own reporting, failing, for example, to deliver on their own initiative information on cases that is received at a later stage. However, another district points out that information that the Directorate of Fisheries fails to report is promptly provided by telephone when the police district requests it. b. Cooperation with the Coastguard The survey among the police districts shows a very high degree of satisfaction with the Coastguard s work. All police districts that cooperate with the Coastguard on fisheries cases say that the collaboration functions well. Six districts respond very satisfactory and two satisfactory. 776 The police districts are also generally satisfied with the manner in which the Coastguard documents reported fisheries cases. Eight of ten police districts completely or partly agree that the cases reported by the Coastguard are well documented. One police district gives a neutral response to the question, and the question is not relevant for another. c. Cooperation with other authorities Three of ten police districts have asked for investigation assistance from Økokrim s Assistance Team in work on fisheries cases. However this applied to very few cases in the period No districts worked with the customs and excise authorities on investigations during this period. Only two worked with the tax authorities, and they felt that the collaboration had functioned very smoothly. One district cooperated with foreign authorities in the period. The authorities in question were Russian, and the collaboration did not function very satisfactorily. The large cultural differences between Norway and Russia were indicated as providing the explanation. The police districts view of whether there is equal treatment in fisheries cases Six of ten police districts agree or partly agree that there is equal treatment in fisheries cases with respect to the proposed penalty or sentence, irrespective of the police district and nationality of the vessel. None of the districts totally disagreed. 775 The account is based on responses to a questionnaire circulated by the OAG to the police districts, 20 November Two police districts respond that the question is irrelevant. 228

233 Figure 7 The police district s stance on the following contention: Similar fisheries cases are treated equally with respect to proposed penalty or sentence, irrespective of the police district and/or the nationality of the vessel a b c d e f 0 Options Amount Per cent A Completely agree % B Partly agree % C Neither agree nor % disagree D Partly disagree % E Disagree completely 0 0.0% F The question is not % relevant Total 10 All police districts completely or partly agree that they have satisfactory routines for ensuring that all cases are treated equally and consistently. Examples of such routines from some of the districts are the use of directives and guidelines for fining rates, that the districts send fisheries cases to one lawyer who is responsible for all environmental cases and is updated on legal practice in this area, that the district maintains an archive of its own cases, and that meetings are held for exchange of experience in the area. b) The Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime (Økokrim) 777 Økokrim, the Norwegian special unit for investigating economic crime, may assist in the local investigation of fisheries cases at the request of the individual police district. 778 In addition to ordinary investigation assistance in these cases Økokrim has the capacity for two major actions a year on average. Through its work, Økokrim sees a number of challenges associated with follow-up of fisheries cases: 777 This account is based in its entirety on the minutes of a meeting between Økokrim and the OAG on 19 June The Assistance Team consists of seven persons whose responsibility it is to cover all Økokrim s fields of activity, excluding environmental crime but including fisheries (all cases involving financial crime). The individual investigator in the team travels between the different police districts that have been granted assistance according to request, and generally spend a week at a time at each place. 229

234 a. Cooperation with the police districts Økokrim s Assistance Team finds that it is important to be present and to make demands of the police districts in order to maintain progress in investigation work. The team s presence in itself generates local activity which, according to Økokrim, would not otherwise have occurred. However, it is Økokrim s experience that both expertise and willingness to investigate fisheries cases vary considerably from one police district to the next. Some districts are also known for asking for help frequently, while others seldom ask for assistance. Økokrim now intends to give higher priority to assistance for those districts that take the initiative and prioritise investigation of fisheries cases, and lower priority to those that do not take initiatives or have not established a smoothly functioning economic crime team. Recently, however, Økokrim has not received any relevant requests for assistance with fisheries cases, probably because of less reporting on the part of the Directorate of Fisheries. 779 b. The environmental team effort Økokrim relates that the Assistance Team has spent more or less all its time strengthening and supporting the building up of environmental teams locally after it was decided to establish environmental teams in all police districts. 780 Økokrim is somewhat critical to how this effort has been applied, and is of the view that the Police Directorate has not followed up the decision as well as it might have done. It is up to the individual chief of police to follow up this measure. As a result, there are some police districts which, according to Økokrim, have not established teams, have chosen inappropriate organisational forms, or for some other reason do not have well functioning teams. In Økokrim s view, the challenge lies in both establishing good teams, where they do not already exist and in assuring that the established teams have the time and capacity to work on economic crime cases. c. Challenges associated with lack of overarching prioritising According to Økokrim, investigation of fisheries cases often takes a very long time, and in some cases offences are old when they are discovered. When cases are drawn out, the evidence in the case is also weakened for example because people forget or have time to change their statements. Økokrim believes that one of the main problems with fisheries cases is a lack of overarching prioritising. This in turn leads to a lack of expertise and, ultimately, a lack of follow-up. In Økokrim s view, it does not help to strengthen follow-up of individual cases. A generally solid organisation and high level of expertise are necessary for success in these cases. The establishment of solid, stable teams, and having one and the same agent follow the whole case are key factors for cutting the time spent and increasing the quality of work in fisheries cases, as in other larger and more complex cases. In some cases (the Værøy case) the prosecuting lawyer was changed no less than five times, and both Økokrim and the Ministry of Fisheries expended substantial resources on familiarising new lawyers with the case. This was highly frustrating, and the final result was also very poor in a case which in Økokrim s view was very strong in terms of evidence. 779 In response to the OAG s questionnaire of 20 November 2006 among the police districts, three of ten police districts state that in the period they requested assistance for investigations from Økokrim s Assistance Team in work on fisheries cases, but that this concerned very few cases. 780 Proposition no. 1 ( ) to the Storting Ministry of Justice states that in the course of 2004 all police districts are to have interdisciplinary environmental teams to be responsible for the processing of cases of economic crime. 230

235 Økokrim notes that there is no great interest in fisheries cases. No-one takes the initiative to learn from individual cases that have taken a long time, and that have been problematic, apart from the fact that Økokrim regularly requests retrospective evaluation meetings. Despite the increased national focus and effort expended on economic crime cases, Økokrim relates that they have not been allocated more resources in this area. 781 d. The reward system in the police districts Decisions by the prosecuting authorities to dismiss cases in the police districts are found to be linked to the reward system. In Økokrim s view, police districts are currently assessed far too much according to the percentage of cases they resolve successfully and the time spent on the case. Adapting to this reward system has had unfortunate results according to Økokrim, as it can lead to prioritisation of the simple cases. The work-intensive cases, where it is also more uncertain whether a legally binding judgement will be achieved, are often not processed or given priority. Økokrim believes that this also applies to fisheries cases, as following up major fisheries cases requires a great deal of resources, expertise and time. Because of the system, tips on fisheries cases and possible infringements are not always followed up and are consequently not registered in STRASAK. c) The public prosecutors In cod fisheries cases, vessels associated with the three northernmost regions accounted for the bulk of the total quantity of cod delivered (84 per cent in all) in 2005, while vessels associated with Møre og Romsdal accounted for about 15 per cent (cf. figure below). 782 Figure 8 Distribution of cod landed in 2005 Region South ; 0 % Trøndelag; 1 % Region West; 1 % Nordland; 34 % Møre og romsdal; 15 % Troms; 24 % Finnmark; 25 % Source: Directorate of Fisheries 781 To date Økokrim has nevertheless not had to refuse assistance in fisheries cases because of a shortage of resources, but carries out internal reprioritisations as needed (cf. minutes of a meeting between Økokrim and the OAG of 19 June 2006). 782 Region West covers Sogn og Fjordane and Hordaland. Region South covers Rogaland and southwards. 231

236 The public prosecutor for Troms and Finnmark The public prosecutor for Troms and Finnmark has the main responsibility for fisheries cases from the Trøndelag district and northwards, and thus the majority of fisheries cases north of 62ºN. 783 The public prosecutor for Troms and Finnmark states that fisheries cases are often complex both legally with respect to establishing the facts, and with respect to arriving at a penalty. Many cases are further complicated by the fact that there are foreign captains and vessels/ shipping companies and large sums of money involved. 784 Through their work with followup and quality assurance of fisheries cases, the public prosecutor for Troms and Finnmark sees a number of challenges associated with the different stages of the enforcement process, from report to sanctioning. 1. Reports from the enforcement authorities According to the public prosecutors of Troms and Finnmark, the Coastguard is very precise in its reports, and there is a high degree of consistency between the contents of the report and the judgement on the case. The Directorate of Fisheries is less precise, but the public prosecutors cannot say anything more specific about the quality of their reports. According to the public prosecutor, the Directorate of Fisheries admit themselves that they are not ready enough to file reports. The Norwegian Fisheries Sales Organisation can also file reports, but does so to a very limited degree according to the public prosecutor. In connection with police investigations, the Directorate of Fisheries regional office itself is responsible for pushing for progress in cases. Most cases are concluded by acceptance of a penalty. Cases that go to court normally end with a judgement and a penalty, particularly cases from the Directorate of Fisheries. According to the public prosecutor, this may indicate that too few cases are reported. 2. The processing of cases by the police districts When foreign vessels are arrested, according to the public prosecutors of Troms and Finnmark it is important that the police work fast in order to avoid criticism and dissatisfaction from the opposite party. In practice, the processing of Norwegian cases, where vessels are not normally arrested, but reported by post, takes much longer than foreign cases. In the view of the public prosecutor, the processing of fisheries cases in the police districts should be faster than is the case today. The public prosecutor finds that fisheries cases take a long time despite the fact that in principle police follow-up of these cases should be simple and take little time. In principle, most of the investigation should have been carried out by the time the report is filed by the inspection authorities, so that only actual questioning or the taking of action remains. According to the public prosecutors, this indicates that fisheries cases are not very attractive to deal with: they tend to be classified as difficult and hence put to one side. The public prosecutors have also noted differences among the various police districts with respect to follow-up of fisheries cases. This applies to procedural time, differences in penalty level and general prioritising of fisheries cases. 3. Follow-up by the police districts Information on and the outcome of cases shall be sent by the police to the public prosecutor for Troms and Finnmark for verification. The office is nonetheless uncertain whether it actually receives all the cases. The office regularly has to send reminders to the police 783 Cf. the account in section Guidelines from the public prosecutor for Troms and Finnmark for cases that concern violations of the Economic Zone Act, the Sea-Water Fisheries Act, the Coastguard Act and the Raw Fish Marketing Act. 232

237 districts in order to secure case documents, and finds this a problem. The public prosecutor states that they do not have any possibility of checking whether all cases actually have come in. The public prosecutor for Troms and Finnmark annually inspects the police districts of Troms and Finnmark on the whole scope of their activities, and the districts in Nordland county on their work with cases concerning vessels. They report that environmental teams have been established, or are being established, in Troms and Finnmark. The public prosecutor has been involved in the establishment of environmental teams in the Vestfinnmark and Østfinnmark regions. Apart from this, the public prosecutor has not been in contact with Økokrim s Assistance Team other than at meetings with other authorities. The public prosecutor considers it crucial that the environmental teams have lawyers who dare to take fisheries cases through the prosecution system, and that there are police auditors. However, a number of environmental teams lack investigators. 4. Equal treatment and penalty level The public prosecutor for Troms and Finnmark is concerned with equal treatment and a consistent penalty level. The public prosecutor has noted some substantial differences between the penalty level in the various police districts, and is working to secure priority for fisheries cases in the individual districts. The police have been asked to prioritise qualified breaches. The public prosecutor has to a large extent relied on police penalty notices and dismissals being correctly processed. The safety valve lies in the fact that the inspection authority appeals where it is found to be necessary. The primary focus of measures to standardise penalty levels is on bringing the penalty levels for Norwegian and foreign fishing vessels into line with one another. According to UNCLOS, imprisonment cannot be used for foreign masters of vessels. Norwegian captains can be sentenced to imprisonment, but this option is seldom used. In the interests of equal treatment of Norwegian and foreign fishermen, a certain caution must also be exhibited with respect to imposing prison sentences on Norwegian captains. The Supreme Court s penalties have become more severe in recent years (after the year 2000). The public prosecutor is satisfied with the manner in which cases are processed in the Supreme Court, particularly after The Hålogaland Court of Appeal has followed a strict line when it comes to follow-up of cases involving vessels, and has ensured equal treatment for Norwegian and foreign masters of vessels. The various district courts are characterised by frequently changing judges. According to the public prosecutor, this makes it difficult to ensure consistent penalties. In the period the public prosecutor noted a large discrepancy in penalty levels. 5. Double jeopardy The public prosecutor does not regard the question of double jeopardy in connection with the Directorate of Fisheries and the police s use of penalties as a problem. Problems arise, however, as a result of poor communication between the Directorate of Fisheries and the police; the one authority does not know what the other is doing. 233

238 Office of the public prosecutor for Nordland county 785 Whereas the public prosecutor for Troms and Finnmark has special authority for cases involving fishing vessels 786 and provides guidelines for the processing of cases 787, the individual public prosecutor s office is responsible for landing and onshore facility cases in fisheries in its own region. It is also the individual office that is responsible for supervision and follow-up in the event of violations as a result of collaboration between vessel/ shipping company and landing facility. According to figures from the Directorate of Fisheries, Nordland was the single region that received the largest share of cod in percent of the total quantity landed. The public prosecutor for Nordland county sees a number of challenges associated with follow-up and cooperation on fisheries cases: a. Follow-up and quality assurance of cases For the police districts in the region covered by the public prosecutor in Nordland and particularly Midtre Hålogaland police district the challenge lies in landing facilities and coastal fishing vessels. According to the public prosecutor, the police have failed to some extent to handle these fisheries cases effectively. The public prosecutor states that in the last two years, in particular, there has been a considerable focus on this area. An inspection in the police district in 2005 revealed a long series of fisheries cases that had remained unprocessed, in some cases for several years. The public prosecutor called the majority of these cases, and about ten cases had to be dismissed as time-barred. Some cases represented substantial assets, and correspondingly serious criminal offences. After this the office started to cooperate with the Directorate of Fisheries, and in January 2005 arranged a major conference in Bodø with the focus on better interdisciplinary cooperation between the police and prosecuting authorities and the fisheries administration. Reporting in 2005 indicates that the cases are now receiving greater attention from the leadership in the police district and that the cases will be completed and prosecution decisions made more rapidly. The public prosecutor in Nordland has not provided special guidelines/prosecution directives for fisheries cases other than the orders issued in connection with inspections and reporting. With the establishment of environmental teams in the police districts, it has been decided that fisheries cases in Midtre Hålogaland police district are to be handled by this unit as a general rule. The public prosecutors have acknowledged to the police that fisheries cases must sometimes be regarded as serious and hence be classified as prioritised economic crime (see the Director General of Public Prosecution s priority circular). The cases often concern substantial assets, infringements affect important socio-economic interests (marine resources) and the cases may have elements of organised crime in the form of collaborations between agents on vessels and on the receiving side. b. Challenges associated with cooperation The public prosecutor points out that fisheries cases generally arise as a result of the inspection activities of the fisheries management, and not through the efforts of the police 785 The account is based on a letter of 18 December from the public prosecutor for Nordland county to the OAG. 786 Cases concerning violation of the NEZ legislation, including the FPZ and the JZ (cf. Section 33-2 of the Prosecution Instructions). 787 Cases that are investigated by the police districts in northern Norway and by the Governor of Svalbard thus come under the office of the public prosecutor for Troms and Finnmark (see guidelines from the public prosecutor for Troms and Finnmark). 234

239 themselves. Filed reports are therefore often accompanied by substantial documentation from the inspection body that may not be easily available to the police executive officer. According to the public prosecutor in Nordland, the evidence thresholds of the fisheries management and the public prosecutor are often different in practice, and it is often a challenge to apply the ordinary norms and principles of criminal law to the case as it is presented. The public prosecutor for Nordland county accordingly believes that it is important to establish satisfactory cooperation between the fisheries management and the police at as early a stage as possible in a case. Another important challenge is to develop and maintain expertise in the police, both legal and investigative. This type of case raises particular problems with respect to both judgement of evidence and application of the relevant fisheries legislation The courts of law 788 Rules and regulations Hålogaland Court of Appeal, which has extensive experience of dealing with fisheries cases, underscores that the fisheries sector is regulated by a number of acts with appurtenant regulations and that the body of rules and regulations as a whole must be regarded as complicated. The Court of Appeal nevertheless has no reason to regard the legislation as unnecessarily complicated. The general impression produced through cases that are brought before the Court of Appeal is that the legislation, despite its complexity, is well known to both those who engage in the industry and those authorities whose responsibility it is to ensure that the rules and regulations are complied with and to prosecute violations. Inadequate knowledge of or understanding of the rules and regulations is not generally a subject for discussion in the cases brought before the Court of Appeal. Preparation of cases, weighing of evidence The Court of Appeal s general impression is that fisheries cases are generally well prepared by the prosecuting authorities and that solid and conscientious work is done in securing evidence and presenting it in court. However, the court points out that there is a need for coordination of the administrative and criminal prosecution of violations of the regulations to avoid coming into conflict with the prohibition of double jeopardy in the European Convention on Human Rights. 789 On balance the Court of Appeal is of the opinion that the treatment of fisheries cases in the courts does not on the whole present other or greater challenges with respect to weighing of evidence, application of rules of law or procedure than those that generally characterise the cases that are brought before the courts Fishermen s assessment of the use of sanctions in practice 790 As in section , the fishermen s responses are divided into four categories, presented in two tables. The first two categories consist of all fishermen and those fishermen who have experienced penalties from the authorities either directly or indirectly through the captain 788 This section is based on a letter of 9 January 2007 from the Hålogaland Court of Appeal to the OAG. The assessments of the court of appeal are based on a review the court has made of a selection of their own decisions in fisheries cases, as well as the court s general impressions of cases it has dealt with. 789 European Convention on Human Rights, Protocol 7, Article The fishermen s assessment of the use of sanctions in practice is based on the same QuestBack survey referred to in section Here, too, the answer category Don t know/not relevant is excluded when calculating the various frequency distributions. 235

240 and/or the shipping company (Table 48). The two last categories consist of all fishermen in the coastal fishing fleet and all those in the deep-sea fishing fleet (Table 49). Table 48 Fishermen s assessment of whether fines, confiscation of catch/catch value and withdrawal of fishing rights are used too little in cases of illegal fishing. Per cent 791 Category of fishermen All fishermen 792 All fishermen who have experienced penalties directly /indirectly 793 Agree/Disagree Completely/partly agree Completely/partly disagree Completely/partly agree Completely/partly disagree Fines used too little with illegal fishing Confiscation of catch used too little with illegal fishing Loss of fishing rights used too little with illegal fishing The figures in Table 48 indicate that the proportion of fishermen who consider that the different sanctions are used too little increases with the severity of the sanctions. This applies irrespective of whether they have experienced penalties or not. At the same time, it can be seen that there is a difference between the two categories of fishermen with respect to their views on the use of fines and confiscation of catches. When all fishermen are considered collectively, there is a larger number who completely or partly agree that fines and confiscation of catch are used too little for illegal fishing than there is among those fishermen who have experienced penalties directly or indirectly. 791 The figures are exclusive of the Don t know/not relevant category, which accounts for from 6.7 to 17.8 per cent of the respondents in the various response categories. 792 The numbers of respondents in this category are 89, 90 and 90, respectively, with regard to the different sanctions. 793 The numbers of respondents in this category are 37, 41 and 42, respectively, with regard to the different sanctions. 236

241 Table 49 Fishermen s assessment of whether fines, confiscation of catch/catch value and withdrawal of fishing rights are used too little in cases of illegal fishing, distributed by fishermen in the coastal fishing fleet and the deep-sea fishing fleet. Per cent 794 Category of fishermen All coastal fishermen 795 All deep-sea fishermen 796 Agree/ Disagree Completely/ partly agree Completely/ partly disagree Completely/ partly agree Completely/ partly disagree Fines used too little with illegal fishing Confiscation of catch used too little with illegal fishing Loss of fishing rights used too little with illegal fishing If a distinction is made between fishermen in the coastal fishing fleet on the one hand and in the deep-sea fishing fleet on the other (Table 49), it is seen that in general there is a majority in both categories who completely or partly agree that the different sanctions are used too little. However, there is a distinct difference in distribution between the two groups with respect to the individual sanction. Whereas the proportion in the deep-sea fishing fleet is almost identical, irrespective of type of sanction, in the coastal fishing fleet there are far more who partly or completely agree that withdrawal of fishing rights is used too little compared with the share who completely or partly agree that fines and confiscation of catch/catch value are used too little for illegal fishing. The fishermen s own comments regarding the practice of the different sanctions bring the following two factors, in particular, into focus: 1. Withdrawal of fishing rights as a sanction Of the 59 fishermen who submitted written comments, 16 argue that temporary/permanent loss of fishing rights/authorisations/licences should be used as a sanction against serious and/or repeated infringements. In addition, three fishermen propose similar sanctions: two propose the imposition of temporary quarantine or arrest of vessels, and one proposes a quota reduction. 2. Incorrect information in catch logbook Of the same 59 fishermen, 12 point out how difficult it is to keep a catch logbook completely correct at all times and/or that the penalty is unreasonably severe compared with what they themselves regard as formal errors, misunderstandings or forgetfulness. 794 Of the 103 original respondents, five were selected here because these five had experience from both fleet groups. Thus the point of departure in this case is 98 respondents 73 fishermen in the coastal fishing fleet and 25 in the deep-sea fishing fleet. The Don t know/not relevant category, which varies from 8.0 to 15.1 per cent of the original respondents in the different response categories in this table, has also been excluded here. 795 The numbers of respondents in this category are 62, 64 and 62, respectively, with regard to the different sanctions. 796 The numbers of respondents in this category are 23, 22 and 23, respectively, with regard to the different sanctions. 237

242 7.6 Sanctions for violation of laws and rules on the use of marine biological resources Pursuant to the bilateral fisheries agreements of 1975 and 1976 between Norway and Russia, the Norwegian authorities are obliged to implement effective measures aimed at conserving the fisheries resources of the North East Atlantic and to ensure that relevant provisions concerning fishing activities are observed. This is primarily contingent on good, appropriate rules and regulations with adequate sanction options. It is also contingent on the fisheries management authorities having a coordinated and efficient system, with satisfactory routines and adequate resources for follow-up and sanctioning of violations of the fisheries legislation Rules and regulations and sanction options General The OAG s investigation shows that Norwegian fisheries management generally has a sound, comprehensive body of rules, both geographical and functional, and that the rules contain adequate authorisation for sanctions. There also appears to be broad agreement between the Directorate of Fisheries, the Coastguard, the police and prosecuting authorities and the courts in this respect. Deficiencies in the regulations However, the investigation shows that there are still some deficiencies in the regulations. These include: 1) Limitations in authorisations for gathering information The Directorate of Fisheries does not appear to have sufficient authorisations for gathering the information and documentation that is necessary to permit the most efficient possible control, collection of evidence and if applicable sanctioning in connection with the sales aspect of fisheries cases. However, the Directorate of Fisheries has presented draft new rules which to a large extent are intended to allow for such authorisation in connection with the consultative hearing of the new Act relating to marine resources. In a supplementary hearing of this Act, the Ministry of Fisheries and Coastal Affairs has also presented draft new rules for this purpose. 2) The wish for more far-reaching authorisations for confiscatory measures against shore facilities Norwegian authorities do not appear to have sufficient authorisations to prevent fish buyers from being left with a net profit after breaking fisheries rules. Here too, however, the Directorate of Fisheries has drafted new rules in connection with the consultative hearing of the new Act relating to marine resources which is intended to address this. In another supplementary hearing of this Act, the Ministry of Fisheries and Coastal Affairs has also presented draft new rules for this purpose. 3) Unclear conversion and yield factors Conversion and yield factors for production at sea and on land do not appear to cover all product types. This makes it more difficult for Norwegian control and enforcement authorities to detect and sanction overfishing. 238

243 7.6.2 Practice of the rules and use of sanction options General With some exceptions, the OAG s investigation shows that Norwegian authorities also have a good system for follow-up and sanction of infringements of the fisheries regulations. This applies generally with respect to resources, expertise, routines and cooperation between the various control and enforcement agencies and between the control and enforcement agencies and the police and prosecuting authorities. Weaknesses of today s practice However, the investigation has revealed some weaknesses in the practice and sanctioning of the regulations. These include: 1) Different enforcement thresholds in different zones The threshold for the Coastguard s enforcement of the fisheries regulations appears to be higher in the Fisheries Protection Zone around Svalbard than in the Norwegian Economic Zone. The question that arises is whether this leads to the regulatory measures in the former zone being challenged to a greater extent than in the latter. 2) Varying practice with respect to the Directorate of Fisheries penalties for violations There appear to be pronounced differences between the individual regional offices with respect to how they react to violations of the fisheries regulations. Two of the regional offices have also requested more detailed clarifications and quality assurance from head office with regard to processing of fisheries cases. 3) Very limited use of administrative sanctions In principle, the Norwegian fisheries authorities also have the right to use administrative sanctions for infringements of the fisheries regulations as an alternative to reports. However, the investigation shows that these sanctions have been used to a very limited extent in the period in question and that in most cases sanctions have been mild when they have been used. When it comes to Russian overfishing in particular, these sanctions (refusal to issue a licence) combined with black-listing are in principle the only sanction Norwegian authorities have at their disposal when Russia does not fulfil its flag state commitments. The question may be raised of why these sanctions have not been used to a greater extent against Russian vessels that over-fish their cod quotas in the Barents Sea. At the same time, it is noted that the Ministry of Fisheries and Coastal Affairs is currently developing rules and regulations to address this problem. 4) Inadequate coordination of administrative and penal sanctions There appears to be a need for better coordination of administrative and penal sanctions through improved communication between the management authorities and the prosecuting authorities. The aim is to avoid coming into conflict with the prohibition of double jeopardy in the European Convention on Human Rights. 5) Long procedural time and insufficient prioritisation of fisheries cases by the police and prosecuting authorities There appear to be clear differences between the various police districts when it comes to the police and prosecuting authorities prioritisation of fisheries cases, and varying qualifications for dealing with such cases. In particular, the fisheries control authorities experience a lack of follow-up and prioritisation of cases associated with sale of fish. The statistical findings also 239

244 show that the procedural time for fisheries cases, i.e. from the time the report is filed until a decision has been pronounced in a criminal lawsuit, is generally long. This also appears to be the case for relatively simple cases. The statistical findings also show that the great majority of fisheries cases that are reported end with acceptance of a penalty or a conviction. This may indicate that too few cases are reported. A rapid, efficient system has been established for prosecuting violations by foreign fishing vessels at sea, while similar infringements committed by Norwegian vessels generally require longer investigation and/or procedural time. It appears unclear why it generally takes a longer time to prosecute a Norwegian than a foreign vessel. 6) Quality assurance of procedures in the police districts There is some uncertainty as to whether the police districts actually send all cases that are to be reviewed and verified to the public prosecutor for Troms and Finnmark. In the survey, the public prosecutor indicates that they have no opportunity to follow-up this uncertainty and that they find the situation difficult. 240

245 8 Topic 5: Distribution and filling of quotas in Norway 8.1 Introduction The Norwegian fisheries administration has developed an extensive and detailed set of rules and regulations for distributing and regulating the harvesting of Norwegian fisheries resources. By means of these regulations, the fisheries administration shall ensure ecological sustainability and at the same time contribute to the profitability of fisheries. The administration shall thereby contribute to a stable fleet structure with fishing operations distributed along the entire Norwegian coastline. 797 One set of regulatory measures is concerned with the right to take part in various fisheries (regulation of participation). The first real restrictions on participation were introduced through the Trawler Act of The first wide-reaching restrictions on the coastal fleet were introduced in1990, because of the acute situation for cod resources north of 62ºN. Since then the right to engage in fishing as an occupation has been restricted for more and more fish species in order to reduce the pressure on the resource base and pave the way for a profitable fisheries industry that is adapted to capacity. Another set of regulatory measures is concerned with how much each vessel is permitted to fish (uptake regulation). A third is concerned with how fishing takes place, and lays down prohibitions and requirements concerning the use of fishing gear, seasonal regulation and the closure of fishing grounds, minimum fish sizes and provisions concerning discards etc. Figure 9 shows the relationship between the different regulations governing the right to fishing and uptake. 797 Cf. Proposition no. 1 to the Storting ( ) Ministry of Fisheries and Coastal Affairs. 241

246 Figure 9 The regulations governing the right to fish and fish uptake Source: The figure shows the relationship between the various regulations. From a meeting between the Directorate of Fisheries and the OAG, December The access restrictions In order to be able to use a vessel for professional fishing, it is necessary to have a permit for commercial fishing from the fisheries authorities. 798 The owner of a vessel must fulfil certain criteria in order to acquire such a permit. Among other things, the vessel owner must have engaged in fishing or hunting as a commercial activity on or with a Norwegian vessel for at least three of the previous five years. This requirement is intended to help to ensure that the Norwegian fishing fleet is owned by active fishermen and to maintain a varied and locally owned fishing fleet. To ensure recruitment to the fishing industry, vessels less than 50 feet long are exempt from the requirement In addition the Act relating to the right to participate in fishing operations (the Participation Act) provides a legal basis for making exemptions from the activity requirement when commercial and regional considerations indicate the necessity. Enterprises in the fishing industry are therefore permitted to own their own vessels in the cod trawler fleet in order to provide a firmer guarantee of a supply of raw materials. 798 Section 4 of Act no. 15 of 26 March 1999 relating to the right to take part in fishing and hunting (the Participation Act) 242