Aquaculture and Fisheries Bill : Consultation Paper and Draft Regulatory Impact Assessment

ANNEX A: DRAFT PROPOSALS FOR THE AQUACULTURE & FISHERIES (SCOTLAND) BILL

Purpose and intended effect

Objective

1. We now have the opportunity to bring forward a Bill in the 2006/2007 session of the Scottish Parliament. The Executive has continued to develop its policy ideas in consultation with stakeholders through the Highlands and Islands Aquaculture Forum ( HIAF), the Freshwater Fisheries Forum and in a series of ongoing bilateral meetings. The attached consultation document sets out the Scottish Executive's key proposals to build investor confidence in the aquaculture industry and to protect sustainability and biodiversity of wild fish stocks on which the views of all with an interest in Scottish aquaculture and freshwater fisheries are sought. The Executive anticipates that the Fish Health Inspectorate within the Fisheries Research Services ( FRS) could provide suitable expertise for a Regulator. The proposed Regulator would act on behalf of the Scottish Ministers with SEERAD officials and would liaise closely with other regulatory experts such as the Scottish Environment Protection Agency ( SEPA). All subsequent references to 'the Regulator' in this document (except in Part 3), refer to the regulator outlined in this paragraph.

2. Our proposals cover the following areas within the four sectors below and will be considered fully by this Regulatory Impact Assessment.

Aquaculture

Parasite control
Containment
Data collection
Fish farm relocation
Compensation for compulsory fish slaughter
Fish movements - fish farms

Wild and Freshwater Fisheries

Gyrodactylus salaris ( GS)
Amendments to rules on access
Fish movements - wild fish
Miscellaneous amendments to existing legislation

Background

3. In 2003, the Scottish Executive published A Strategic Framework for Scottish Aquaculture
and associated action plans containing 33 priorities for action on economic, environmental and social issues. This included an objective 'to enact legislation governing the aquaculture industry in Scotland'. The Executive's consultation paper Protecting and Promoting Scotland's freshwater fish and fisheries in 2000 and the subsequent Green Paper of 2001, Scotland's freshwater fish and fisheries: Securing their future drew together potential ideas for policy development for freshwater fisheries some of which require legislative changes to give effect to.

Rationale for government intervention

4. Failure to introduce legislation in these areas will mean that the measures proposed in paragraph 2 (above) will remain outstanding. This is undesirable, given that the proposals will bring benefits to both the rural environment and rural economy.

Consultation to date

5. The proposals have already been subject to wide ranging consultation:

The Freshwater Fisheries Forum and Freshwater Fisheries Steering Group made up of key stakeholders have been considering the future of freshwater fisheries. These groups have been chaired by the Executive and their minutes published online. ( http://www.scotland.gov.uk/topics/fisheries/salmon-trout-coarse/fff/forum )
The Highlands and Islands Aquaculture Forum has been debating proposals relating to aquaculture for the past year. This Forum is attended by a range of sector interests including the aquaculture industry.
The Executive has also been in bilateral discussions with a range of stakeholder interests over the past year or so.
Discussions have also taken place between the Executive and other sections of the public sector, including, local government, SNH, SEPA and FRS.

Issues for discussion

6. The Executive is now consulting on policy proposals that may go into the Aquaculture and Fisheries (Scotland) Bill and this Regulatory Impact Assessment ( RIA) is part of the consultation document. Comments on this RIA should therefore also be provided by 24 February 2006.

7. The purpose of this RIA is not to debate the merits of the proposals but rather to identify and analyse the benefits, risks, costs and compliance issues arising from alternative options for taking forward proposals that may create additional costs or burdens for both business and the public sector. We believe that the proposals listed in Paragraph 6 above fall into this category.

8. Views on likely cost implications would be welcome, as would the identification of other aspects of the consultation paper that may create burdens or costs on private and public interests.

Part One: Aquaculture

Parasite control

9. In the first instance, the main concern is the control of sea lice. However, it may be that in the future other parasites may prove to be a problem, for example affecting nursery grounds for sea fish, the proposals therefore apply to parasites more generally.

10. Sea lice are endemic to UK waters and affect salmon and sea trout, both wild and farmed. Wild salmon and sea trout stocks have declined in recent years on the west coast of Scotland. It is reasonable to assume that wild and farmed stocks sharing the same environments transfer parasites to each other. As such it is essential that a precautionary approach is adopted and that sea lice is managed and controlled on farmed fish to protect wild stocks and indeed other farmed fish. As such the salmon farming industry, government and wild salmonid stakeholders have been working collaboratively to determine the interactions between sea lice and farmed and wild salmonids with a view to developing appropriate solutions to ensure the maintenance of healthy stocks of wild and farmed fish.

11. The Executive set up the Tripartite Working Group ( TWG) in 1999 to address problems common to both farmed and wild fisheries. TWG objectives are delivered at the local level through voluntary Area Management Agreements ( AMAs). A key AMA objective is the target of zero ovigerous female sea lice on salmon farms, particularly during the smolt run between February and June. Similarly, the fish farming industry have drawn up, in conjunction with wild fish interests and the Executive, the National Strategy for the Control of Sea Lice on Scottish Salmon Farms (the NTS) which sets out an agreed detailed treatment approach, including levels of lice infestation that trigger treatment. This strategy is currently being updated and should form an integral part of the industry's upcoming Code of Good Practice.

12. The proposals outlined for directing treatments for parasites raises questions about the desirability of enabling the regulator to direct treatments in respect of notifiable diseases. The Executive is also proposing a role for the regulator to direct treatments for notifiable diseases.

Options

13. Two options have been identified as follows:

Option 1: Do Nothing

Option 2: Regulator to have powers to ensure good management of parasites including the possibility of mandatory treatment, and have powers to direct treatment (in its widest sense) for notifiable diseases.

Costs and benefits

Sectors and groups affected

14. The enabling powers proposed in this Bill would potentially affect fish farmers keeping any finfish, i.e. salmon, cod, haddock, halibut, etc. However, the only issue of direct concern at present, sealice, would directly affect only salmon farmers. The measures would not affect shellfish farmers. The Executive proposes a role for a Regulator to have responsibility for ensuring that good management of sea lice is achieved. The Regulator would have a role in advising farms on best practice. In addition, the Regulator would have an enforcement role. They would have the power to inspect treatment records, establish of there was a sea lice problem on the farm and to have the powers to direct remedial action which could include mandatory therapeutic treatment. The Regulator would liaise closely with the company vet and SEPA to ensure that the issues of prescription medicines and discharge consents were taken fully into account.

Benefits

Option 1

15. Do nothing means continuing to rely on the voluntary approach, which may in some cases result in no overall environmental benefit.

Option 2

16. There are environmental benefits to the environment if sealice levels are controlled effectively, the principal beneficiaries being the wild salmon and sea trout stock and other fish farms in the area. It is difficult to quantify such benefits given that sealice is one of a number of factors that influence the levels of wild salmon and sea trout stocks.

Costs

Option 1

17. If the status quo is maintained, there will no additional costs either on the fish farming industry or the public purse.

Option 2

18. The Executive believes that the costs to the public purse for work carried out by the regulator will be around £120,000 per annum. There will be no extra cost to the Industry where there is no mandatory treatment required. Where mandatory treatment is ordered by the Regulator then we estimate a cost of £40 per tonne of fish treated using existing methods. Where farms comply with the treatment requirements of the National Treatment Strategy, it is not envisaged the Regulator will require mandatory treatment.

Small firms impact test

19. We continue to engage with the finfish farming industry on this issue. During the consultation we intend to carry out a series of roadshows with stakeholders and in the process meet with individual businesses to gain an insight into how our proposals might affect them. This will inform the final RIA.

Test run of business forms

20. We do not intend to introduce any new business forms for this issue.

Competition assessment

21. The following table gives an assessment of whether there are likely to be any competition issues in the market affected by the proposals, i.e. finfish farming.

22. In terms of market share, the aquaculture industry is dominated by salmon production. The salmon farming industry itself is dominated by a very small number of companies. This proposal will not distort or restrict on competition for the production sector within Scotland as all fish farming businesses will be required to comply.

In the market(s) affected by the new regulation, does any firm have more than 10% market share? Yes
In the market(s) affected by the new regulation, does any firm have more than 20% market share? Yes
In the market(s) affected by the new regulation, do the largest three firms together have at least 50% market share? Yes
Would the costs of the regulation affect some firms substantially more than others? No
Is the regulation likely to affect the market structure, changing the number or size of firms? No
Would the regulation lead to higher set-up costs for new or potential firms that existing firms do not have to meet? No
Would the regulation lead to higher ongoing costs for new or potential firms that existing firms do not have to meet? No
Is the sector characterised by rapid technological change? No
Would the regulation restrict the ability of firms to choose the price, quality, range or location of their products? No

Enforcement, sanctions and monitoring

23. The Proposals could result in the regulator demanding mandatory treatment that could carry a potential cost to the aquaculture industry of £60,000 per treatment for a large 1500-tonne farm using existing treatment methods. Failure to comply with such a direction would allow the Regulator to arrange the necessary treatment through a contractor and for the contractor to subsequently recoup the cost directly from the operator. However, we have yet to establish what form the sanctions, enforcement and monitoring will take. We intend to keep all parties, including business, informed.

Part Two: Containment

24. There continues to be a high degree of public interest and concern about the numbers of fish farm escapes of salmon (and trout), and their possible impact on wild stocks. For fish farmers, escapes represent a loss of valuable assets (although to some extent this can be offset by insurance). For conservation and wild fish interests; escaped fish have the potential to increase disease risk, compromise genetic integrity and increase competition in the freshwater environment which in turn will have the potential to affect the survival of the resultant progeny.

25. Containment of fish to prevent escapes is a key priority of the Strategic Framework for Scottish Aquaculture ( SFSA). Since the SFSA was published in 2003, a Containment Working Group ( CWG) comprised of key stakeholders including Industry and wild fish interests has drafted new Containment Guidance for regulators and industry on behalf of the Highlands & Islands Aquaculture Forum ( HIAF), relevant parts of which will be included in the upcoming Industry-wide Code of Good Practice.

26. Progress has been made since 2000 to minimise the risks of escapes from fish farms. We welcome the fact that the aquaculture industry has played its part in recent years through self regulation. However, whilst the voluntary approach is very welcome, this good practice should be underpinned by statutory provisions which ensure that the entire fish farming industry puts measures in place to prevent, and if necessary deal with, fish escapes effectively.

Options

27. Two Options have been identified as follows:

Option 1: Do Nothing

Option 2: Operators obliged to prevent fish from escaping, where fish do escape the regulator will have powers to ensure that future escapes are minimised or prevented. The regulator can also report bad practice to the Fiscal which in turn could result in fines being applied to operators.

Costs and benefits

Sectors and groups affected

28. The proposals will affect any fish farmers keeping any finfish, e.g. Salmon, Trout, Cod, Haddock, in both the marine and freshwater environment. The proposals will not affect shellfish farmers. We envisage a role for a regulator that will have powers to inspect a farm with respect to the criteria set out in containment plans with a view to reducing the likelihood of fish escaping. The ability to inspect a farm should not be dependent on an escape or suspected escape taking place. If the Regulator found evidence that procedures could be improved, they would have the power to direct fish farm operators to take certain specified steps within an agreed timescale with a view to remedying the situation. Failure to comply with such direction would be an offence and could result in legal action and fines being applied.

Benefits

Option 1

29. Where we continue to rely on the voluntary approach to containment this does not necessarily mean that the whole industry is taking effective action to prevent escapes or taking effective action to prevent repeated escapes.

Option 2

30. The proposed regulator will audit sites to ensure that the containment measures across the Industry are robust and effective, to the benefit of both the operator (financially) and the environment. Where fish do escape or where bad practice is identified the regulator will be able to ensure that the operator carries out remediation measures with the aim of preventing further escapes - and so in the long term reduce the financial loss to industry and secure benefit for the environment.

Costs

Option 1

31. If we maintain the status quo, then it is likely that some sections of the aquaculture industry will sustain continued fish losses and financial losses, however there may be a balance here, bad practice may reduce cost but increase the financial risks from escapes. There will be no additional costs for the public purse.

Option 2

32. We believe the costs to the public purse for work carried out by the regulator of a similar amount set out in the previous section on parasite control. There should be no additional costs to Industry as containment is a matter of good practice.

Small firms impact test

33. We continue to engage with the finfish farming industry on this issue. During the consultation we intend to carry out a series of roadshows with stakeholders and in the process meet with individual businesses to gain an insight into how our proposals might affect them. This will inform the final RIA.

Test run of business forms

34. We are proposing new notification procedures for the aquaculture industry to follow in the event of an escape. These procedures will replace existing forms for the notification of escapes. We will develop new forms and test them with the appropriate business organisations and ensure that they are easily accessible, clear, simple and easy to complete.

Competition assessment

35. The following table gives an assessment of whether there are likely to be any competition issues in the market affected by the proposals, i.e. finfish farming.

36. In terms of market share, the aquaculture industry is dominated by salmon production. The salmon farming industry itself is dominated by a very small number of companies. This proposal will not distort or restrict competition for the production sector within the Scotland as all fish farming businesses will be required to comply.

Enforcement, sanctions and monitoring

37. The Proposals could result in expenditure by the operator where the operator is instructed by the regulator to train staff or maintain or replace equipment. A fish farm operator could be fined where the operator cannot demonstrate that it has not taken all reasonable steps to prevent a escapes of farmed fish. We don't know at this stage what form of the sanctions, enforcement and monitoring will take, however we will keep all parties, including business, informed.

Part Three: Data Collection

38. At the moment, the only information the Executive receives from the aquaculture industry comes from the annual shellfish and finfish production survey undertaken by the FRS, based on returns submitted by industry on a voluntary basis. The Executive cannot ensure it currently receives reliable economic information which means we are not in a position to monitor trends accurately, which can complicate matters where we have to deal with trade issues at an international level.

39. We propose to introduce powers in the Bill that will enable Ministers to introduce secondary legislation which will oblige the aquaculture and related industries to submit data that they are not obliged to submit under existing regimes. The data submitted will include all data currently obtained through the annual production survey as well as additional economic data from producers and processors.

Options

40. Two Options have been identified as follows:

Option 1: Status quo, continue to rely on voluntary submission of data by Industry.

Option 2: Obtain production and economic data from Industry on a statutory basis.

Costs and benefits

Sectors and groups affected

41. The statutory requirement to provide production data will have little impact on existing fish farm producers, for the most part; they already provide the required data on a voluntary basis once a year. The main impact on this sector will be the knowledge that there will be a statutory requirement which is supported by the possibility of a punitive fine for non-compliance. However, the processing sector will, for the first time, be required to provide data with respect to their operations concerning farmed fish; this will be likely be viewed as an additional administrative burden.

Benefits

Option 1

42. If we continue to rely on the voluntary submission of data by the Industry then we will not be in a position to analyse and report accurately on the sustainable development of aquaculture in Scotland.

Option 2

43. Providing the Scottish Ministers with this data will inform how the Scottish Ministers develop future policies to allow them to make future informed decisions which ensures that the Industry continues to move towards achieving the Strategic Framework for Scottish Aquaculture vision of a sustainable, diverse, competitive and economically viable industry. This option will also ensure the provision of industry data despite political differences within the sector, which has lead to the withholding of price data in the past.

Costs

Option 1

44. If we maintain the status quo, there will be no additional costs either on the aquaculture industry or the public purse.

Option 2

45. The extra cost burden on Industry will be limited to the submission of data over and above what they currently submit under voluntary arrangements and should be negligible. A study is being taken forward to identify what additional data is required and to identify how it and existing data can be collected efficiently to minimise cost. We believe any additional costs to the public purse can be absorbed within existing working patterns.

Small firms impact test

46. We continue to engage with the aquaculture industry on this issue. During the consultation we intend to carry out a series of roadshows with stakeholders and in the process meet with individual businesses to gain an insight into how our proposals might affect them. We will do likewise with the processing sector. It will prove difficult to identify processors who exclusively process farmed fish or isolate the aquaculture line operation of those businesses that process both farmed and caught fish. It will be vital to work with industry in finding a viable way forward that does not disadvantage part of a sector or a sector as a whole in comparison with agricultural food processing. These actions will inform the final RIA.

Test run of business forms

47. We will develop new forms and test them with the appropriate business organisations and ensure that they are easily accessible, clear, simple and easy to complete.

Competition assessment

48. The following table gives an assessment of whether there are likely to be any competition issues in the market affected by the proposals, i.e. the entire aquaculture production and processing industry.

49. This proposal will not distort or restrict on competition for the production and processing sector in Scotland as all fish farming businesses will be required to comply by providing identical information - a task, to a greater extent, already undertaken on a voluntary basis by the vast majority of the production industry. At an international level, salmon production is dominated by the Norwegian industry. It is our understanding that the Norwegian Government obtains similar data from its industry so the formalisation of data provision in the Scotland is unlikely to cause any disadvantage with respect to international competition. The processing sector has not previously provided this type of information. It will undoubtedly place an additional administrative burden on the sector that processes farmed fish.

Enforcement, sanctions and monitoring

50. We don't know at this stage what form of the sanctions, enforcement and monitoring will take, however we will keep all parties, including business, informed.

Part Four: Fish Farm Relocation

51. The relocation of finfish farms is one of the priorities for action in the SFSA. A location/relocation working group ( LRWG) was established and comprised key stakeholders representing the public sector, wildfish interests, the aquaculture industry, environmental NGOs and regulators to prepare criteria against which to assess whether or not any finfish aquaculture site is poorly located. The main driver (but not the only driver) for the relocation of fish farms is the potential for finfish farming to adversely affect wild salmonid stocks.

52. The LRWG has adopted a practical approach, and has already identified certain fish farm sites that are inappropriately located with a view to eventually drawing together a framework to facilitate relocation. The Relocation Framework will be informed by work currently being undertaken by FRS and the Scottish Aquaculture Research Forum in addition to pilot relocation and ICZM demonstration projects. The Scottish Executive intends to publish a draft Framework for public consultation in Spring 2006 and carry out a strategic environmental assessment to underpin the framework.

53. The Scottish Ministers should be given powers in the Bill enabling them to provide justifiable financial assistance to fish farm operators who wish to relocate any or all parts of their operations where they are able to demonstrate to Ministers that there is an overall environmental benefit from doing so.

Options

54. Two Options have been identified as follows:

Option 1: Do nothing.

Option 2: Financial assistance for farms that wish to relocate or are compelled to cease operating in the public interest.

Costs and benefits

Sectors and groups affected

55. We expect the provision to apply to all types of fish farm, in all parts of Scotland in both the freshwater and marine environment. All fish farms will have the opportunity to apply for financial assistance where they wish to relocate their operations.

Benefits

Option 1

56. Fish farmers will not receive any financial assistance from Scottish Ministers for relocating their operations under current arrangements.

Option 2

57. A grant scheme for fish farmers will promote the relocation of fish farm sites where there is a clear environmental benefit from doing so. We expect the forthcoming framework to inform the final form of the grant scheme.

Costs

Option 1

58. Without financial assistance, the industry may be less inclined to relocate which could result in the continued operation of poorly sited fish farms and an overall cost to the environment.

Option 2

59. There will be costs to the public sector which will depend on the overall size of the budget put aside for any future relocation scheme. For industry the costs will depend on the farm type, size, location, operation, etc. Where Ministers decide that compulsory closure is required then there may be costs to the public purse, this will also depend on the individual farm on a case by case basis and the potential for relocation.

Small firms impact test

60. A pilot relocation project and a whole loch system relocation ( ICZM) demonstration project are currently being undertaken and involves a number of fish farm operators. This work will inform the final RIA, as the project will also be taking into account the financial costs and benefits to industry of fish farm relocation, and thus inform the levels of finance required from the public sector to realise the aims and objectives of the framework.

Test run of business forms

61. We will produce new forms for the proposed scheme of financial assistance as we develop our thinking on relocation and will test them with the appropriate business organisations and ensure that they are easily accessible, clear, simple and easy to complete.

Competition assessment

62. The following table gives an assessment of whether there are likely to be any competition issues in the market affected by the proposals, i.e. the entire aquaculture production and processing industry.

63. This proposal will not distort or restrict on competition for the production sector within Scotland as we expect all fish farming businesses to be eligible to apply for financial assistance for relocation.

Enforcement, sanctions and monitoring

64. We have proposed that the Scottish Ministers should have the power to close a fish farm where it can be demonstrated that there is either a clear public interest for them to do so, or that the application of the precautionary principle strongly suggests to the satisfaction of the Ministers that closure is fully justified. However, we have yet to establish what form the sanctions, enforcement and monitoring will take. We intend to keep all parties, including business, informed.

Part Five: Discretionary Power to Pay Compensation for

Compulsory Fish Slaughter

65. At the time of the ISA outbreak in 1998/99 there was no compensation for losses due to Executive disease controls. It became clear that investor confidence in the fish farming industry can be considerably dented when there is no safety net for the effects of government controls.

66. Compensation on any terms could give rise to substantial costs to the public purse, for which no provision is made in current spending plans and the Scottish Ministers would have to consider carefully whether any such costs could be afforded. The Executive therefore proposes that there should be an enabling power such that the Scottish Ministers could, if they saw fit and without obligation, pay compensation of such amount in what circumstances as they prescribed by statutory instrument, for any fish destroyed for the purposes of disease controls.

67. Any compensation scheme for any given outbreak of disease would be detailed in a Statutory Instrument ( SI) which would be consulted on at the time. Any scheme would be aimed at providing compensation in respect of fish which could not be presented to market, i.e. those showing signs of clinical disease and would only be funded on the basis of shared risk with a compensation of no more than 50% of the market value of fish. Should a scheme for limited compensation be drawn up under the enabling power outlined above, the Scottish Ministers may be of the view that compensation would be payable only to operators that demonstrated clear evidence of compliance with the industry's Code of Good Practice.

Options

68. Two Options have been identified as follows:

Option 1: Do nothing.

Option 2: Discretionary powers to compensate farmers for fish that show symptoms of disease and have been compulsory slaughtered.

Costs and benefits

Sectors and groups affected

69. The proposals will affect any fish farmers keeping any finfish, e.g. Salmon, Trout, Cod, Haddock, in both the marine and freshwater environment where clearance of the farm is directed in order to eradicate disease. The potential for compensation would mitigate the financial effects of compulsory slaughter. The proposals will not apply to shellfish farmers.

Benefits

Option 1

70. The fish farming industry will continue to rely on self financing to recover the losses sustained through the compulsory slaughter of fish. There will continue be no costs to the public purse.

Option 2

71. The Industry do not currently receive any compensation from the state for compulsory slaughter of fish, so any compensation on a shared risk basis will be of benefit to the Industry.

Costs

Option 1

72. There will be no additional costs to either the industry of the public purse.

Option 2

73. The level of compensation (and cost to the public purse) will depend on the structure and scope of any scheme introduced by Scottish Ministers. To illustrate; where a 2,000 tonne farm has an outbreak of a disease, and that disease was within the scope of the compensation scheme then the operator may be eligible for compensation where fish are compulsory slaughtered. Assuming all fish are slaughtered, and the risk shared between the Executive and the operator is on a 50/50 basis then the Executive would cover the cost of 1,000 tonnes of salmon. If the salmon have reached market size and the market price is £2 per kilo, then the cost to the public purse would be around £2 million. However, this is unlikely, as not all the fish culled would be ready for market or would show clinical signs of disease, so the bill would be less. The detail of any discretionary scheme will need to be worked up but the costs to the public sector could be significant.

Small firms impact test

74. We continue to engage with the aquaculture industry on this issue. During the consultation we intend to carry out a series of roadshows with stakeholders and in the process meet with individual businesses to gain an insight into how our proposals might affect them. This will inform the final RIA.

Test run of business forms

75. We will develop new forms as we develop our thinking on compensation with the appropriate business organisations and test them to ensure that they are easily accessible, clear, simple and easy to complete.

Competition assessment

76. The following table gives an assessment of whether there are likely to be any competition issues in the market affected by the proposals, i.e. the entire aquaculture production industry.

77. This proposal will not distort or restrict on competition for the production sector within Scotland as all affected fish farming businesses be in receipt of compensation, where a scheme exists and thus enabling affected companies to continue trading.

Enforcement, sanctions and monitoring

78. We do not expect any action, as the proposals concern possible payment to the farmer by the Scottish Executive of compensation for fish slaughtered by order of the Regulator.

Part Six: Fish Movements - Fish Farms

79. The greatest risk of spreading disease and parasites is through the movement of live fish. This became clear during the outbreak of infectious salmon anaemia ( ISA) in 1998/99 when it was confirmed that there was only one source point of infection and that the disease was spread to a further ten sites in all the main production areas of Scotland. Apparently healthy fish were moved, under veterinary supervision, from infected farms (prior to the infection being discovered) resulting in a subsequent disease outbreak in the receiving sites. While ISA is the main impetus behind bringing in controls, it is important to recognise that novel diseases may arise in the future.

80. The Executive is keen to reduce the risk of the introduction and spread of disease into and between fish farms. To do so, there are three main areas we would seek to manage: the movements of all life stages of live fish in and out of marine farm management areas; movements of live fish in and out of freshwater farms; and transportation by wellboats (these carry live fish).

81. For marine farms, we propose that the consent of Scottish Ministers will be required for movements of live fish out of management areas which would need to be clearly defined. This would regulate, amongst others, movements onshore for stripping of broodstock and for processing.

82. For freshwater fish farms we are proposing a 'standstill provision' that would be able to cover the whole of Scotland and could prevent all movements in the event of an outbreak of a novel disease which would not, by definition, be covered by the Diseases of Fish Act 1937.

83. For wellboats, we propose to enable the regulator to be able to inspect any wellboat vessel operating in Scottish waters before it begins operations at a farm. The regulator would grant an operating licence if it was satisfied that the vessel had been properly disinfected or withhold a licence until disinfection had been carried out to its satisfaction.

Options

84. Two options have been identified as follows:

Option 1: Do nothing.

Option 2: Improve fish movement controls to and from freshwater farms, marine farms and wellboats.

Costs and benefits

Sectors and groups affected

85. The proposals will affect any fish farmers keeping any finfish, e.g. Salmon, Trout, Cod, Haddock, in both the marine and freshwater environment. The proposals will not affect shellfish farmers. These proposals will also affect well boat operators. There will also be an enhanced role for any regulator administering fish movements. The effect on industry is difficult to predict. Proposed movements between managements areas should be rare if current practice continues. Movements ashore are commonplace but some form of block approval may be appropriate. The standstill provision is a precautionary measure. It may never be needed, but if it is it could create a considerable disruption to trade. Importation of wellboats is also a relatively rare occurrence as they tend to be leased for long periods.

Benefits

Option 1

86. There will be no additional costs for both the Industry and the public purse.

Option 2

87. There will be benefits to the health and welfare of farmed fish through the introduction of controls to reduce the risk of disease between fish farms. A reduction in the disease risk may benefit the Industry, as the frequency of outbreaks will decrease. This would also reduce the possibility of spread of disease and parasites to wild fish.

Costs

Option 1

88. By doing nothing we will not be reducing the risk of disease or the costs borne by the Industry to tackle disease outbreaks.

Option 2

89. There will be costs borne by the public purse, as the fish movements regime will have to be administered. We estimate the costs of administration to the public purse to be in the region of £100,000.

Small firms impact test

90. We continue to engage with the aquaculture industry on this issue. During the consultation we intend to carry out a series of roadshows with stakeholders and in the process meet with individual businesses to gain an insight into how our proposals might affect them. This will inform the final RIA.

Test run of business forms

91. We will develop new forms as we develop our thinking on fish movements with the appropriate business organisations and test them to ensure that they are easily accessible, clear, simple and easy to complete.

Competition assessment

92. The following table gives an assessment of whether there are likely to be any competition issues in the market affected by the proposals, i.e. the entire finfish farming industry.

93. The proposals will not distort or restrict competition in the production sector within the UK as all fish farming businesses will be affected by the proposals. In practice much will depend on the disease status of companies seeking consents.

Enforcement, sanctions and monitoring

94. We don't know at this stage what form of the sanctions, enforcement and monitoring will take, however we will keep all parties, including business, informed.

FRESHWATER FISHERIES

Part Seven: Gyrodactylus salaris

95.Gyrodactylus salaris ( GS) is an external parasite which affects the skin, gills and fins of salmonids in freshwater. It kills salmon and other species can act as carriers. It is exotic to Great Britain, but its introduction would have devastating consequences for our wild stocks. It has been recorded in many parts of the European Union and is widespread in Scandinavia. It was accidentally introduced into Norway in 1975 and has wiped out wild salmon stocks in more than 40 rivers there.

96. In order to prepare for the possibility that GS is discovered in Scotland, the Executive has recently established a GS Task Force to research the risks involved and draw up contingency plans for action.

97.GS is a notifiable disease under Section 4 of the Diseases of Fish Act 1937. Under the provisions of the Act the Scottish Ministers have the power to:

inspect fish farms and other waters and to take samples;
impose movement restrictions on fish, their viscera, eggs and food, to and from and within farms and waters which are infected or suspected of being infected;
require the disposal of dead or dying stock and direct the manner of their disposal; and
grant authority for the removal of fish in infected waters for the purpose of controlling the spread of GS.

98. We believe the powers outlined above are sufficient to be able to controlGS should it arrive. However, the economic and biodiversity consequences of GS taking hold in Scotland are potentially extremely serious, so it is important that the Scottish Ministers have the option of attempting eradication.

99. Were there to be an outbreak of GS, the Scottish Ministers would require to consider whether eradication was the most appropriate option in that particular case; taking into account the scale of the problem, the level of risk, the economic and health aspects and their responsibilities under domestic and European legislation. Depending on the size and use of the infected waters Ministers could decide that the eradication option was inappropriate and limit efforts only to controlling the spread of infection using existing powers.

Options

100. Two options have been identified as follows:

Option 1: Status quo.

Option 2: Eradication of GS in affected areas.

Costs and benefits

Sectors and groups affected

101. Where GS is present, it will inevitably lead to the death of wild Atlantic Salmon stocks and so have a detrimental impact on salmon fisheries and the wider rural economy that depends on the salmon fishery, e.g. hotel owners, restaurants, shops, etc. Where eradication is undertaken then the impact will be wider as all fisheries and fish farming activities in the treated area will be adversely affected for possibly an extended period of time. Water users may also be affected, e.g. canoeists, swimmers, water suppliers, energy generators. There may also be an impact on the public sector, as it is likely that substantial resources will be required to eradicate GS.

Benefits

Option 1

102. The benefits of not having undertaking eradication measures will be the minimal cost to the public purse.

Option 2

103. Eradicating GS in a river system would lessen the economic impact on the salmon fishery and the wider rural economy - as salmon stocks would recover in time.

Costs

Option 1

104. The presence of the parasite will have a longer-term (if not terminal) impact on the salmon fishery where eradication measures are not undertaken.

Option 2

105. Where eradication is deemed appropriate by the Scottish Ministers then there will be a cost to the public purse, this will depend very much on the extent of the eradication programme. It is very difficult to be precise at this stage what the costs to the public purse might be, this is something the GS Taskforce will be considering in due course.

Small firms impact test

106. We continue to engage with our stakeholders on this issue. The GS Taskforce will meet with individual businesses to gain an insight into how GS eradication might affect them. This will inform the final RIA.

Test run of business forms

107. We do not intend to introduce forms.

Competition assessment

108. The following table gives an assessment of whether there are likely to be any competition issues in the market affected by the proposals.

In the market(s) affected by the new regulation, does any firm have more than 10% market share? No
In the market(s) affected by the new regulation, does any firm have more than 20% market share? No
In the market(s) affected by the new regulation, do the largest three firms together have at least 50% market share? No
Would the costs of the regulation affect some firms substantially more than others? No
Is the regulation likely to affect the market structure, changing the number or size of firms? No
Would the regulation lead to higher set-up costs for new or potential firms that existing firms do not have to meet? No
Would the regulation lead to higher ongoing costs for new or potential firms that existing firms do not have to meet? No
Is the sector characterised by rapid technological change? No
Would the regulation restrict the ability of firms to choose the price, quality, range or location of their products? No

109. The freshwater community is constituted of anglers, fishery owners and other water users including, farmers, electricity generators, the whisky industry and canoeists. The impact on businesses is impossible to predict as it will depend on the extent of any outbreak. We do not believe that this proposal will not distort or restrict competition.

Enforcement sanction and monitoring

110. We envisage that the regulator will monitor water systems for the presence of the parasite and would apply controls where it finds it. Any decisions to attempt eradication would be taken by SEERAD and Scottish Ministers. However, we have yet to establish what form the sanctions, enforcement and monitoring will take. We intend to keep all parties, including business, informed.

Part Eight: Amendments to Rules on Access

111. Healthy fisheries need healthy fish populations. Conservation and exploitation are interdependent and there is a balance to be struck between fishing effort and protection of the resource. The Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003, makes provision for the establishment of protection orders. Under the existing system proposals may be submitted by either riparian owners or occupiers (tenants who by virtue of a lease have fishing rights for freshwater fish) for protection orders covering catchment areas or parts thereof (lochs or systems of lochs and/or rivers). Protection orders make fishing without permission a criminal offence rather than a civil offence.

112. Over the past year, the Freshwater Fisheries Forum has been developing its thinking on the conservation, management and exploitation of stocks, with Partnership Agreement No. 345 (improving access to fisheries) very much in mind and has considered proposals/changes that would require primary legislation. In Scotland's freshwater fish and fisheries: Securing their future, the Executive proposed reviewing protection orders with a view to repealing the Freshwater and Salmon Fisheries (Scotland) Act 1976 (now provisions contained principally in sections 48-51 and 66 of the Salmon & Freshwater Fisheries (Consolidation) (Scotland) Act 2003).

113. It has become clear through the work of the Forum that until a replacement management structure is in place, it would be inappropriate to repeal those provisions of the 1976 Act which are now included in the 2003 Act. This will have to await a future legislative opportunity. Nevertheless, it was the view of the forum that a number of the shortcomings of the protection orders system could be addressed by legal or administrative means and these are set out below.

Options

114. Two Options have been identified as follows:

Option 1: Do nothing.

Option 2: Amend existing legislation to enhance the protection orders system.

Costs and benefits

Sectors and groups affected

115. The proposed changes are applicable to those fisheries managers who wish to increase access for anglers in their area.

116. Benefits

Option 1

117. There are no benefits to be derived from doing nothing.

Option 2

118. There is broad agreement from our stakeholders that these changes would be advantageous to the angling community and fisheries managers. The benefits are principally environmental with greater protection afforded to those species that are not already covered by existing legislation.

Costs

Option 1

119. The freshwater fisheries community would continue to be frustrated by the shortcomings of the existing protection order system.

Option 2

120. We believe the costs to both the private and public sector to be negligible.

Small firms impact test

121. We continue to engage with the freshwater fisheries community on this issue. During the consultation we intend to carry out a series of roadshows with stakeholders and in the process meet with individual businesses to gain an insight into how our proposals might affect them. This will inform the final RIA

Test run of business forms

122. We do not intend to introduce forms.

Competition assessment

123. The following table gives an assessment of whether there are likely to be any competition issues in the market affected by the proposals.

124. The freshwater fishing community is made up of many anglers, angling clubs and fishery owners. The proposals will apply to fisheries owners who wish to improve access, and will benefit anglers who wish to fish in these areas through improved access. We do not believe that this proposal will not distort or restrict competition.

Enforcement, sanctions and monitoring

125. We don't know at this stage what form of the sanctions, enforcement and monitoring will take, however we will keep all parties, including business, informed.

Part Nine: Fish Movements - Wild Fish

126. There is a recognition amongst stakeholders that it is important to bring in controls over movements of fish into inland waters and watercourses. Moving fish from one water body to another can adversely affect the receiving fish population through increased predation and competition for food, by weakening its genetic identity and by disrupting the local ecosystem, particularly if it involves the introduction of alien species. In addition, introducing fish can cause welfare problems if fish numbers rise above the carrying capacity of the water body concerned. Controls for wild fish movements would also control the spread of diseases such as Viral Haemorrhagic Septicaemia ( VHS), Infectious Haematopoietic Necrosis ( IHN) and parasites such as Gyrodactylus salaris ( GS).

127. We propose a power to prohibit the keeping of, the transportation of, and the introduction into, any inland water (unless it is a fish farm) of, live fish or spawn of fish, without the authority of the Regulator. In addition, it would be an offence to be found in possession of fish or spawn in circumstances which afford reasonable ground for suspecting that a person intends to introduce them into inland waters.

128. Movements between freshwater fish farms would be exempted. Movements from a fish farm to any other inland water, for example a put and take fishery would be regulated. However, such movements could be regulated by blanket consents from the Regulator. The Executive may also consider enforcement powers for river bailiffs. These proposals do not apply to ornamental fish kept indoors or in a garden pond.

Options

129. Two Options have been identified as follows:

Option 1: Do nothing.

Option 2: Prohibit the introduction of live fish into an inland water, keeping of live fish and transporting of live fish without the authority of a regulator

Costs and benefits

Sectors and groups affected

130. These proposed changes would apply to any parties who wished to introduce live fish into an inland water, transport fish and keep fish except where the fish in question were being put into garden ponds or aquariums.

Benefits

Option 1

131. Moving fish from one water body to another can adversely affect the receiving fish population through increased predation and competition for food, by weakening its genetic identity and by disrupting the local ecosystem, particularly if it involves the introduction of alien species. In addition, introducing fish can cause welfare problems if fish numbers rise above the carrying capacity of the water body concerned. The lack of any movement controls also heighten the risk of disease outbreaks.

Option 2

132. The introduction of controls would substantially reduce the risks outlined in Option 1 above.

Costs

Option 1

133. Where there continues to be a heightened risk to the natural heritage and health status of resident fish populations then the riparian owners and the angling community could face financial hardship in the longer term, as fishery declines.

Option 2

134. The introduction of movement controls will ensure a healthy fishery. There may be costs to the public purse for the administration of such a scheme, in addition to additional financial costs to fisheries. We are proposing to reduce the regulatory cost and burden through an annual licence that would cover all fish movements for an individual enterprise.

Small firms impact test

135. We continue to engage with the freshwater fisheries community on this issue. During the consultation we intend to carry out a series of roadshows with stakeholders and in the process meet with individual businesses to gain an insight into how our proposals might affect them. This will inform the final RIA.

Test run of business forms

136. We will develop new forms as we develop our thinking on fish movements with the appropriate business organisations and test them to ensure that they are easily accessible, clear, simple and easy to complete.

Competition assessment

137. The following table gives an assessment of whether there are likely to be any competition issues in the market affected by the proposals.

138. The freshwater fishing community is made up of many anglers, angling clubs and fishery owners, who will all be equally affected by the proposals. We do not believe that this proposal will not distort or restrict competition.

Enforcement sanction and monitoring

139. We don't know at this stage what form of the sanctions, enforcement and monitoring will take, however we will keep all parties, including business, informed.

Part Ten: Miscellaneous Amendments to Existing Legislation

140. The Freshwater Fisheries Forum was set up in 2004 to consider future requirements for freshwater fisheries. As part of its work, the Forum gave consideration to possible amendments that could be made to existing freshwater fisheries legislation, with a view to clarifying the law on certain aspects of fishing. The majority of these changes have been agreed by the Forum. We have also included proposals that we believe will improve on the existing provisions.

141. The proposed changes are of a technical nature and cover the following areas:

definition of fishing by rod and line;
use of live vertebrate as bait;
use of gaffs, tailers, pike gags and landing nets;
foul-hooking;
close times;
prohibit eradication and obstruction of fish; and
definition of fish.

Options

142. Two Options have been identified as follows:

Option 1: Do nothing.

Option 2: Introduce technical amendments to existing fisheries legislation.

Costs and benefits

Sectors and groups affected

143. The proposed changes are applicable to the entire freshwater fishing community.and will alter the way in which some anglers fish and riparian owners manage their fisheries.

Benefits

Option 1

144. There are no benefits to be derived from doing nothing.

Option 2

145. There is broad agreement from our stakeholders that these changes would be advantageous to the angling community and fisheries managers. The benefits are principally environmental with greater protection afforded to those species that are not already covered by existing legislation.

Costs

Option 1

146. The freshwater environment in Scotland would not benefit from the changes proposed.

Option 2

147. We believe the costs to both the private and public sector to be negligible.

Small firms impact test

148. We continue to engage with the freshwater fisheries community on this issue. During the consultation we intend to carry out a series of roadshows with stakeholders and in the process meet with individual businesses to gain an insight into how our proposals might affect them. This will inform the final RIA

Test run of business forms

149. We do not intend to introduce forms.

Competition assessment

150. The following table gives an assessment of whether there are likely to be any competition issues in the market affected by the proposals.

151. The freshwater fishing community is made up of many anglers, angling clubs and fishery owners. These proposals will not distort or restrict on competition within the fishing community as all parties will be required to comply.

Enforcement, sanctions and monitoring

152. We don't know at this stage what form of the sanctions, enforcement and monitoring will take, however we will keep all parties, including business, informed.

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The Scottish Government

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Aquaculture and Fisheries Bill : Consultation Paper and Draft Regulatory Impact Assessment

ANNEX A: DRAFT PROPOSALS FOR THE AQUACULTURE & FISHERIES (SCOTLAND) BILL