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CHAPTER 2 - ANALYSIS OF PART I: AQUACULTURE

The Executive anticipates that the Fish Health Inspectorate within the Fisheries Research Services ( FRS) could be extended to provide a suitable basis of expertise for a Regulator. The proposed Regulator would act on behalf of the Scottish Ministers in conjunction with the Scottish Executive Environment and Rural Affairs Department ( SEERAD) officials and would liaise closely with other regulatory experts such as the Scottish Environment Protection Agency ( SEPA).

2.1 Regulator

Question 1: Do you agree that FRS/ SEERAD would make the most suitable Regulator?

Table 2.1 shows the breakdown of responses to this question for each of the main stakeholder groups.

Table 2.1 Views on the Regulator

Note: The overall response rate for this question was 74%

An overwhelming majority of respondents agreed with the Executive's statement that the Fish Health Inspectorate within the FRS could provide a suitable basis of expertise for a regulator. One local authority noted;

"Yes, long overdue. The empowerment of the existing Fish Health Inspectorate to fulfil this need is agreed as a practical response to the need."

However, many of those respondents who agreed with the proposal also expressed concerns about the ability of FRS to deal with issues such as containment and sea lice. There were a number of suggestions made about the need for Ministers to provide "adequate resources" and ensure that the "requisite expertise and training are in place". One fish farm underlined the views of many by stating:

" FRS/ SEERAD don't have the qualifications/skills to do this. They would need to considerably enhance them."

Some respondents took issue with the need for a regulator. A number of fish farms suggested that the Industry would be, "adequately regulated by the new independently audited industry Code of Good Practice, existing company veterinary health plans and audits by insurers, customers and other external stakeholders".

Other fish farms considered the robust regulatory framework provided by the Code of Good Practice to be sufficient. One local authority echoed the view of many fish farms by suggesting that issues other than fish health be "best left to industry, their insurers and auditing organisations (such as Lloyds and DNV) working through the industry Code of Good Practice".

Some respondents suggested that any regulator need only get involved where companies fail to meet certain criteria set out in the Industry Code of Good Practice.

A small number of respondents suggested an enhanced role for either SEPA, VMD or the State Veterinary Service rather than FRS.

2.2 Charging

The Executive is considering whether the Regulator should be empowered to recover the costs involved in undertaking certain farm inspections through a charge levied on the operator of a fish farm. The question of charging for authorisation of fish movements should also be considered. The Executive proposes an enabling power to allow the possibility of charging should future circumstances require this.

Question 2: Should there be an enabling power to permit the option of charging in the future?

Table 2.2 shows the breakdown of responses to Question 2 for each of the main stakeholder groups.

Table 2.2 Views on charging

Note: The overall response rate for this question was 69%.

68% of respondents agree that there should be an enabling power to permit the option of charging. Some of those respondents that agreed with the proposal qualified their responses by suggesting that companies should be charged only where they do not meet minimum standards, for example where a company fails to adhere to industry codes of practice. One NGO stated:

"We strongly agree with the proposal to enable charging to recover costs. Charging must be based on the polluter pays principles, as is the case with many other regulated sectors. We would oppose any levy across the industry, which would result in compliant fish farmers paying for regulators to inspect non-compliant farms. Charges must be used as a incentive for compliance."

Some of the respondents who disagreed with the notion of charging did accept that if there were to be charging then it should be linked to performance against industry codes of practice. One fish farm noted:

"No, unless any system of charging can be linked to incentives to compliance - for example, operators who are compliant with the regulations would not [to] be charged for monitoring of compliance, whereas those who are found not be compliant could be charged for follow-up visits. We also believe that there is an opportunity to link compliance to the standards of the Code of Good Practice to a waiving of charges."

Other respondents suggested that charging should be introduced as it is 'accepted practice' for regulators to cover their costs from those they are regulating. One consultant noted:

"It is accepted practice that regulators should be able to recover their costs from industry. But charging for routine monitoring when there are no problems and the fish farm company is acting to best practice and professionally could be a disincentive to undertaking good practice. However charging the companies which fail consistently to meet standards does produce an incentive to improve performance."

30% of respondents, including almost all aquaculture respondents disagreed with the proposal to introduce an enabling power. Many felt that any charging would have a detrimental effect on the competitiveness of the Scottish aquaculture industry. One university noted that charging "would place a huge financial burden on an industry where margins are already very tight". A non-governmental organisation commented that this would be "a new and unwarranted financial burden on the industry, jeopardising the industry's profitability and competitiveness". A number of fish farms and a local authority sought parity with the land-based production sector, one fish farm suggested that "terrestrial farming is currently not charged for state regulation and we see no reason why an exception should be made for aquaculture".

A few respondents suggested that charges should not apply to all forms of aquaculture (or at the very least disadvantage) including small producers such as trout farmers, shellfish farmers and hatcheries.

2.3 Parasite Control

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. It may therefore be sensible under the precautionary principle to make provision for parasites more generally rather than sea lice in particular.

2.31 Provision for parasites

Question 3: Should the Bill make provision for parasites in general, or restrict itself only to sea lice?

Table 2.3 shows the breakdown of responses to Question 3 for each of the main stakeholder groups.

Table 2.3 Views on provisions for parasites/sea lice

Note: The overall response rate for this question was 75%.

80% of respondents felt that the Bill should make provision for parasites in general. 14% felt that the Bill should only make provision for sea lice. 6% gave a mixed response, either because it was unclear as to what provision they preferred or because they objected to both options put forward.

An overwhelming number of respondents felt that a wider provision would be prudent given the likely emergence of new species for aquaculture in the future. One fish farm felt that species other than Lepeophtheirus salmonis should "only come within the Regulator's remit on the basis of scientific evidence of adverse effects". One university noted:

"It would appear scientifically expedient that the Bill should not be restricted to sea lice alone, but should embrace all parasites. As other aquaculture industries ( e.g. intensive cod farming) develop it is quite possible that other species of parasites might become problematic to wild and/or farmed fish species."

The same respondent also gave a suggestion as to how parasites might be defined in legislation. The university stated that:

"The colloquial term "sea lice" generally is used to refer to Lepeophtheirus salmonis (the salmon louse) and Caligus elongatus. These are copepods of the Order Siphonostomatoida, of the Family Caligidae. Many scientists therefore refer colloquially to "caligid sea lice". This usage specifically confines the term to caligids, but there are many species of copepods in that family which are parasitic on marine fishes. As a further illustrative example of the necessity for scientific conciseness in categorising or referring to parasites, we would refer you to Lernaeocera branchialis (Family Penellidae) and Clavella adunca (Family Lernaeopodidae). L. branchialis is a serious economic pest species on wild gadid fish of the cod family (notably cod, whiting and haddock). Clavella adunca is also a common parasite of these same fish. Neither Lernaeocera nor Clavella would be referred to as "sea lice", but both are copepods of the Order Siphonostomatoida. As cod farming develops in Scotland it is highly likely that these, and many other species of parasites, may well cause problems for farmed and wild fish alike. Neither C. adunca nor L. branchialis will impact salmonids, but the potential for interaction between farmed cod and wild gadid species is clear. The legislation presumably has to take account of possible future developments in aquaculture, including new cultured fish species, and can overcome the potential for taxonomic confusion and non-caligid copepods becoming pests, by the inclusion of all metazoan parasites under the Bill."

Those that wanted the provision limited to sea lice did not give clear reasons as to why this should be the case. A number of individuals and fish farms indicated that the National Strategy for the Control of Sea Lice on Scottish salmon farms had been incorporated into the industry Code of Good Practice and provides appropriate advice for sea lice management. A number of aquaculture bodies suggested that the chapter on sea lice management in the Code of Good Practice be considered for inclusion in the Bill or as guidance which the Regulator should use in inspecting farms.

A number of fish farms gave a mixed response to the options put forward. They felt that it would be difficult to draw up meaningful provisions for parasite problems where they do not currently exist. One fish farm stated:

"There is already legislation in place to deal with the introduction of novel diseases to EU waters. The Code of Good Practice and the Veterinary Health Plans held by the industry already mean that there is little need for further regulation of sea lice control in fish farming. It is always in the financial interest of the farmer to look after the welfare of his/her own livestock."

Other respondents, including one university echoed this view by stating:

"This proposal appears excessive and unnecessary. The control of parasites on fish farms is routinely provided by experienced health care professionals with experienced veterinary support. Local clinical control is a legal requirement for the provision of many veterinary medicines. It is unlikely that the proposed regulator will have sufficient professional experience and training and it is hard to imagine them providing the necessary local clinical control. This proposal would equate to having a regulator to control anthelminthic use in cattle and sheep. This suggestion takes the precautionary principle too far."

One aquaculture body found the proposals both unnecessary and unacceptable. However it did note:

"If, in the fullness of time, evidence of critical importance of some other parasite emerges, then there would be ample opportunity to develop management regimes to deal with the problem at the time. [We] would be very pleased to discuss formal options for this sort of approach via the Aquaculture Health Joint Working Group."

2.32 Functions

The Executive proposes a role for the 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, particularly as regards sampling techniques and lice identification.

In addition, the Regulator would have an enforcement role. It would have the power to inspect a farm's sea lice monitoring and treatment records on request and if there were evidence of a problem, to have the powers to direct remedial action which could include directing 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.

Question 4: Should the regulator have both advisory and enforcement functions?

Table 2.4 shows the breakdown of responses to Question 4 for each of the main stakeholder groups.

Table 2.4 Views on advisory/enforcement functions

Note: The overall response rate for this question was 78%.

75% of respondents agreed that the regulator have both enforcement and advisory functions.

It was not clear from many of those respondents who agreed that the regulator have both enforcement and advisory functions as to the extent to which each function be applied. Respondents tended to weigh responses towards advisory, with enforcement very much viewed "as a last resort". Some suggested that enforcement only be introduced where there is a failure of best practice in the Industry to ensure that those operators unable or unwilling to comply with the Code of Good Practice are required to do so. One local authority noted:

"The emphasis must be on advising operators as to best practice, or minimum acceptable standards, however reliance on this process alone is unlikely to be successful so there is a clear need for an enforcement function."

A fish farm stated:

"We believe that the regulator should only intervene when an aquaculture operation has failed to comply with a critical area of the Industry Code of Good Practice. If, however, the operator of a farm has failed to comply with a critical area of the Code of Good Practice, then we accept that the Regulator should have both an initial advisory function and then an enforcement function."

Many fish farms indicated that only an advisory function was required with advice from the regulator aligned to the National Treatment Strategy "which already provides accepted advice on sea lice management". It was however generally accepted that if there were to be enforcement then there "would have to be a very clear and defined line between advice and direction".

Some respondents suggested other approaches. A few aquaculture bodies suggested that advice and assistance from the administering body should only be proffered where participants in the Code of Good Practice fall below the required standards. They suggest that in these situations then such parties would "be reported to the Regulator who may assist in the provision of advice and assistance in order to ensure those standards are met" with the "precise trigger level, and mechanism, for reporting to the regulator will be outlined in secondary legislation".

Many of those that did not want any kind of function for the regulator did not give any reasons for their answer. Some suggested that regulators were not needed as sea lice management could be best handled by a "fully qualified and experienced veterinarian who has experience of sea lice and a knowledge of the history and peculiarities of the site in question". One respondent went further and stated that the "industry code of practice should be adequate to cover sea lice management along with [the] professional judgement of the company vet".

2.33 Powers to inspect and investigate

The Regulator would use its judgement when making data requests for treatment records to farm operators. They could, for example, make requests as part of a rolling programme of inspections. Alternatively, requests could be made on the basis of other intelligence, including third party notification. The Regulator would only act on third party notification if it believed there to be a strong case to do so.

Where louse levels are at or above a pre-determined 'trigger' level, then the Regulator would meet with the operator to discuss reasons why treatment may not have occurred or been effective. The Regulator would take account of the views of the company vet and SEPA before deciding whether a treatment or other action is required. If it is deemed to be necessary, the Regulator would have power to instruct treatment or other actions. The Regulator could decide that the appropriate action is non-therapeutic and may, for example, direct that a fish farm's employees are provided additional training.

Question 5: What powers should the regulator have as regards the inspection of data and investigation of potential parasites problems on farms?

Table 2.5 shows the breakdown of responses to Question 5 for each of the main stakeholder groups.

Table 2.5 Views expressed about powers to inspect and investigate

Note: The overall response rate for this question was 71%. Due to the broad range of views this question has not been broken down into response categories. This table simply shows the number and percentage of respondents in the stakeholder groups.

A high number of individual respondents and respondents from the freshwater fisheries sector suggested that the regulator should have full powers to carry out its functions with respect to the control of sea lice levels on farms. This included any inspection, investigation, advice and enforcement activities. Many felt that the inspectors should also have full access to data. One District Salmon Fishery Board noted:

"The Regulator would need to have a wide range of powers to be able to function effectively. A combination of routine data supply by farms, routine inspections by the regulator, focusing on critical times of the year, and random checks are required to provide robust regulatory regime."

Other respondents indicated that much was already being done with respect to sea lice. One local authority noted that, "t reatment records are already required as part of the existing discharge consent regime, and will form part of [the] Controlled Activities Regulations". Most respondents from the aquaculture sector pointed to the fact the Industry Code of Good Practice advocates integrated sea lice management already. Many felt that it should not be necessary for farms to be inspected for potential parasite problems where companies were compliant with the Code of Good Practice. One aquaculture body summed up the feeling of many by stating:

"For companies compliant with the Code of Good Practice, it should not be necessary for the Regulator to inspect farms to investigate potential parasite problems. The Code of Good Practice chapter on sea lice management is particularly robust and should be given sufficient time to roll out and prove itself."

Some respondents felt that at the very least sea lice monitoring and treatment records must be available for inspection with any inspected counts being put in the public domain to help "alleviate public concerns". Many respondents could not understand why sea lice data should be kept confidential, particularly as data was routinely available to the public in other countries. One freshwater body noted:

"The aquaculture sector has an obligation to take account of other interests, such as shell fish farmers and wild fisheries, however the new Code of Good Practice does not address the issues relating to these other stakeholder interests…Such openness is common in other countries where aquaculture is well established, e.g. Norway."

Most fish farms objected to the prospect of "compulsory provision of sea lice data". Some fish farms suggested that data need only be made available to the regulator where there is an observed parasite problem but only in conjunction with farm vets. There was also some concern from across the aquaculture sector in relation to third party notification of sea lice infestations to inspectors. Many felt that any third party notification should be evidence based with scope for prosecuting malicious reporting. One fish farm noted:

"Third party notification by itself and with no supporting evidence as a basis for a request for information is unacceptable in all cases and especially unacceptable where the farm is Code of Good Practice compliant. The Regulator should have discretion on when to act and similarly when not to act. Penalties should be applied in the case of frivolous and/or vexatious claims."

2.34 Powers to direct treatments

The Regulator should also liaise with SEPA on the issue of discharge consents. It is possible there could be a conflict between required treatment and available discharge consents. The Executive intends to investigate the options for action in such a scenario.

Should the Regulator decide that a therapeutic treatment is required then the Regulator would direct the fish farm operator to undertake a specified treatment. 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.

Question 6: Should the Regulator have the power to direct treatments?

Table 2.6 shows the breakdown of responses to Question 6 for each of the main stakeholder groups.

Table 2.6 Views on powers to direct treatments

Note: The overall response rate for this question was 73%

77% of respondents agreed that the regulator should have the power to direct treatment.

Most of the respondents that agreed with the proposal did not offer any comments in support of their answer. Other respondents offered suggestions as to the exact nature of any powers. A few suggested that directing treatment should only by used as a last resort. One local authority stated:

"Yes, as a last resort where an operator is presumably in breach of the industry Code of Good Practice and where the regulator's advice is too late or went unheeded."

Others indicated that any treatment should only be carried out with agreement with the vet. Many fish farms indicated that if the regulator did not reach agreement with a vet to treat then this could invalidate the company's insurance and may also attract compensation from the regulator for the loss of stock as a result of the treatment. One fish farm noted:

"If a sea lice treatment is carried out without such an agreement then the company's insurance is invalidated. In any instance where a treatment was directed against the advice of a veterinary surgeon there would need to be a provision for compensation for the loss of stock. The Regulator should not have powers to direct treatment, unless they are prepared to underwrite any losses, which will occur."

There was also some concern that where the regulator was able to override the discharge consent by SEPA then this may compromise permitted biomass levels post treatment, with a few respondents deeming the proposed powers to direct as "unnecessarily precautionary".

There was also a widely held view by many that the regulator should have a role in relation to facilitating access to the full range of veterinary medicines to treat parasites. This can be summed up by the views of a District Salmon Fishery Board:

"We would urge the Executive to push at the highest level for a fast track mechanism to accelerate the use of new treatments already widely used in Norway i.e. Alphamax and Betamax. This should allow the industry, the regulator and SEPA more options in balancing consents with the need to treat."

A number of respondents also suggested that any treatment should only be considered on response to an agreed trigger level. Some respondents questioned how this might work in practice. One fish farm put the question:

"How will the Regulator powers fit with the Controlled Activities Regulations administered by SEPA and the National Treatment Strategy?"

A few respondents questioned what how a directed treatment might affect a fish farms organic status. One local authority asked:

"What happens where an organic producer is forced to treat thereby losing his organic status?"

Question 7: Should the Regulator have the power to arrange treatment through a third party contractor where a direction to treat has not been complied with?

Table 2.7 shows the breakdown of responses to Question 7 for each of the main stakeholder groups.

Table 2.7 Views on treatments by third parties

Note: The overall response rate for this question was 74%.

69% of respondents agreed that there should be powers to arrange treatment through a third party.

Many respondents who agreed with the proposals also took the opportunity to stress that this measure should be used very much as a 'backstop' and only after full consideration with vets and operators. Some referred to the need for any action to be "in extremis" where "all efforts to ensure compliance and good neighbour activity have failed" whilst others underlined the need for inspectors to have the power to take action if the problem cannot or will not be dealt with by the operator.

One District Salmon Fishery Board summed up the feeling of many, noting:

"If the Regulator concludes that a company's lice treatment strategy has failed to comply with the industry's own Code of Good Practice and then requires action to be taken, the need for a third party contractor may be required if the company concerned persists in that failure. It is worth noting here that whilst this may seem a draconian measure, the failure of companies to comply with their own Code of Good Practice not only has implications for their business and potentially wild fisheries, but also for neighbouring fish farm businesses who are complying with the Code of Good Practice. This issue of the inability to control a 'free rider' in an open and dynamic environment shared by many other industry and non industry stakeholders has been a serious Achilles heel of the fish farming industry to date. We do not underestimate the problems associated with such a process and would see this as 'in extremis' action where all efforts to ensure compliance and good neighbour activity have failed."

A number of fish farms and aquaculture bodies suggested that there are currently no third party contractors able to carry out sea lice treatments, and thus no expertise available for the Inspector to draw upon. Some also suggested that by implementing this proposal the regulator "may violate the veterinary code, the SEPA consent, and the insurance of the company". Other respondents indicated that any powers would interfere with the management of the fish farm and make the regulator liable for any treatment.

A small number of respondents suggested that the fish farms be shut down, or licences withdrawn, or fined where they do not comply with the instructions of the regulator. One non-fisheries business noted:

"The site operator should be responsible for the remedial action but if this is not completed within a reasonable period of time, the regulator should have the power to close the site until action has been taken."

2.35 Directing treatment for notifiable diseases

Existing powers in relation to notifiable diseases are designed to prevent the spread of disease through restrictions on movements of fish, equipment, etc. The proposals outlined in part A for directing treatments in respect of parasites raises questions about the desirability of enabling the regulator to direct treatments in respect of notifiable diseases. Such directions could apply to treatment in its widest context; it could mean use of therapeutic treatments, vaccination or management strategy. Where the use of therapeutic treatments is desirable then the Regulator would take account of the views of the company vet and SEPA before deciding whether treatment is required. For example, if we failed in our efforts to eradicate another outbreak of Infectious Salmon Anaemia ( ISA) we would wish to be able to direct the vaccination of new inputs of stock in order to protect against ISA infection in surrounding waters or farms.

Question 8: Should the Regulator have the powers to direct treatment for notifiable diseases?

Table 2.8 shows the breakdown of responses to Question 8 for each of the main stakeholder groups.

Table 2.8 Views on notifiable diseases

Note: The overall response rate for this question was 74%.

75% of respondents agreed that the regulator should have the powers to direct treatments for notifiable disease.

Most respondents did not give any reasons for agreeing with the proposal. Of those that did, some indicated that the proposal was a sensible one as this would enhance measures to prevent the spread of disease. One local authority summed up the feeling of many and noted:

"There is no point identifying the presence of a notifiable disease if no action is taken to prevent it spreading. If the disease is treatable then it should be treated by the operator in the interest of fish welfare. If this has not been done then there is a clear need for treatment to be directed and the cost burden met by the company."

This proposal was also welcomed by a few fish farms. One fish farm noted:

"The logic of this provision seems clear. A notifiable disease is so-classed because it causes significant economic loss. In such circumstances, where effective treatment exists, it would be logical to assume that industry would wish to apply such treatment. Unilateral failure to do so might endanger the activities of neighbouring farms, and therefore the provision to direct treatment is a clear protection for everyone's benefit."

Other respondents pointed to the situation in the land based sector, where there are existing policies relating to notifiable diseases, such as Foot & Mouth. They suggested parity, with the regulator having the powers to enforce treatment.

A majority of fish farms objected to the proposal. Some suggested that the industry had demonstrated its commitment to tackling notifiable diseases, citing the success in controlling ISA. Others indicated the proposals were unnecessary as there were adequate powers already in place that allow for the destruction of diseased fish with a notifiable disease. Some respondents wondered what treatments were envisaged to cover notifiable disease beyond what was currently in place. One aquaculture body summed up the feeling of many, noting:

"Neither the current Directive 91/67 nor the proposed revision allow therapeutic treatment for notifiable diseases (List 1 & 2, ISA, IHN, VHS, G. salaris, plus BKD, SVC). The proposal to use vaccines is at the behest of the Standing Committee on Animal Health and Welfare ( SCAHAW) in Brussels, and the UK would be required to seek permission for ring-fence vaccination of healthy fish. However, if the healthy fish were subject to vaccination they may require to be culled in due course as any diagnostic testing or techniques may prove positive - including false positives. Treatment for current notifiable diseases is therefore hypothetical. Legal powers cannot be based on such a premise. The only treatment for notifiable diseases is slaughter".

2.4 Containment

2.41 Definition of fish farm

Progress has been made since 2000 to minimise the risks of escapes from fish farms. The Executive welcomes the fact that the aquaculture industry has played its part in recent years through self regulation. This good practice should nevertheless be underpinned by statutory provisions to ensure that the entire fish farming industry puts measures in place to prevent, and if necessary deal with, fish escapes effectively.

The Executive proposes that the following proposals apply to all types of marine and freshwater fish farms, other than restocking hatcheries for wild fisheries and shellfish farms.

Question 9: Should escapes proposals apply to all farm types outlined above?

Table 2.9 shows the breakdown of responses to Question 9 for each of the main stakeholder groups.

Table 2.9 Views on escapes proposals applying to all farm types stated

Note: The overall response rate for this question was 72%.

A majority of respondents agreed that the Executive's proposals on escapes be applied to all types of fish farm outlined in paragraph 30 of the consultation paper. However, whilst an overwhelming majority of respondents stated yes or no to the question posed, it was unclear upon reading the responses whether respondents were agreeing with the proposal that shellfish farms and freshwater farms should be exempted or whether they were agreeing that these activities should not be exempted from the escapes proposals. This could be due to the fact that Question 9 was possibly badly worded. It is therefore questionable as to whether the figures in Table 2.9 accurately represent the views of respondents.

The following analysis of Question 9 limits itself only to those substantive points that agree or disagree wholly with the proposal that the escapes proposals apply to all activities mentioned in paragraph 30 of the consultation paper. This analysis will not include those respondents who expressed views as to what specific activities should be subject to the any provisions relating to escapes. Such views have been placed in the mixed category in Table 2.9 and have been considered alongside responses to Question 10.

Of those respondents that explicitly wanted the Executive's escapes proposals to apply to all activities, many emphasised the need to apply precaution. One local authority noted:

"The precautionary principle should apply in relation to the various risks that are associated with escapes from all the farm types."

One NGO noted:

"We believe that these proposals should be applied to all farm types and should not exempt shellfish farms and restocking hatcheries. While we understand that 'escapes' from farms carrying shellfish or hatchery species which are native to that area may be of limited concern, ensuring the legislation covered all farm types is sensible under the precautionary principle and will 'future proof' the legislation against emergent disease or new parasites."

One public body stressed the need for any regime to take cognisance of the impact of non-native species on the environment, stating that:

• "a continuous trickle of escapes can be more damaging than a single large escape
• deliberate releases (for example of unsaleable fish) should be outlawed, as well as accidental escapes;
• it would be difficult to contain all shellfish gametes, but propagules from non-natives demonstrate a risk to the natural heritage;
• even locally sourced adults, after 3-4 generations of artificial selection, will be genetically quite different from the original source population."

Question 10: Should shellfish farms and restocking hatcheries be exempted?

Table 2.10 shows the breakdown of responses to Question 10 for each of the main stakeholder groups.

Table 2.10 Views on the exemption of shellfish farms and restocking hatcheries

Note: The overall response rate for this question was 70%.

Question 10 was placed alongside Question 9 in the consultation paper. This analysis considers all the responses to question 10 and in addition takes into account the mixed responses to Question 9.

There was little agreement from across the range of interests as to most appropriate option. 35% of respondents agreed that both shellfish farms and restocking hatcheries be exempt from the escapes proposals.

For shellfish farms many respondents considered the risks of escapes to be negligible. One angling association remarked "we believe that shellfish farms should be exempted, as escapees are not seen as an issue". Some respondents argued that it was not entirely clear how an escape could relate to a shellfish farm. One public body indicated that shellfish farms be excluded, "until there is a clearer definition". Others suggested that shellfish farms should only be exempt where such shellfish were native and locally sourced. One fish farm noted:

"Shellfish farms should only be exempt under similar circumstances ( e.g. where natural spat settlement is used or where hatchery raised spat have been sourced from local wild broodstock). Furthermore, they should only remain exempt as long as the stock have not received any therapeutic treatments and are free of disease."

Some respondents suggested that all shellfish farms be covered by the escapes proposals. One aquaculture body noted:

"Broodstock, hatcheries and shellfish all carry risk of disease and should be subject to the same restrictions/management practices as salmon."

Some respondents gave conservation reasons for not exempting shellfish farms from the proposals. One District Salmon Fishery Board noted:

"We believe that shellfish farms should be included within the legislation. There may be occurrences in the future where introduced spat may spread into areas of high conservation value."

Similar arguments were made in relation to restocking hatcheries. A number of respondents stressed the need to differentiate between commercial restocking hatcheries and non-commercial hatcheries that use "wild, native stock for fishery enhancement or restoration purposes". Many of these respondents suggested that exemptions only be made for smaller non-commercial restocking hatcheries. One District Salmon Fishery Board summed up the feeling of many, noting:

"It may be unnecessary to extend containment proposals to small hatcheries where stock is only held from the immediate catchment on which the hatchery is sited, and where it is released as unfed fry. In the case of larger hatcheries, perhaps over a threshold above which significant displacement of wild fish would occur in the case of an escape and holding fish for a greater length of time, (more possibility of contracting disease), we consider that these should be included in escapes proposals."

Other respondents, including District Salmon Fishery Boards and Fisheries Trusts suggested that there should be no exemptions for any restocking hatcheries. Some indicated that there should be a Code of Practice for wild fish hatcheries. One university noted:

"Restocking hatcheries, both for shellfish and finfish, in freshwater and the sea, should be covered by this, not exempt. The best scientific evidence and theory indicates that intentional introductions, except in the case of extinction, are likely to be detrimental to natural, native populations. Perhaps even more so than escapes. Thus all introductions to the wild should require assessment and approval."

2.42 Powers to inspect and direct

It is proposed that the Regulator will have powers to inspect a farm with respect to the criteria set out in the containment plans with a view to reducing the likelihood of fish escaping. The ability to inspect a farm would not be dependent on an escape or suspected escape taking place. Rather, prevention would be the watchword. If the Regulator found evidence that procedures could be improved, it would have the power to direct the fish farmer operators to take certain specified steps within an agreed timescale with a view to remedying the situation. Failure to comply with such a direction would be an offence.

Question 11: Do you agree that the Regulator should have the powers to inspect and direct with respect to preventing escapes?

Table 2.11 shows the breakdown of responses to Question 11 for each of the main stakeholder groups.

Table 2.11 Views on the Regulator inspecting and directing over prevention of escapes

Note: The overall response rate for this question was 77%.

A majority of respondents agreed that the Regulator should have powers to inspect and direct with respect to escapes prevention. Many felt that this was needed and that the focus should be on "prevention rather than cure" complemented by a "formal" inspection regime.

A high number of fish farms were concerned that any regulator might not have the expertise and resources available to allow it to give "considered appropriate advice and direction". Many fish farms felt that any inspection regime was unnecessary given that fish farm operators "meet the rigorous specifications" set by the insurance industry. Other respondents hoped that FRS would be given the necessary tools. One NGO noted that "training and other resources must be given to FRS for it to be effective in its new role".

Many respondents felt there was a role for the Industry Code of Good Practice, and that it should be given a chance to prove itself. Others felt that there was scope for the Regulator to inspect regularly only those companies not participating in the Code of Good Practice. The feelings of many were summed up by the following aquaculture body, which noted:

"It is unlikely that the Regulator would have the necessary resources available to provide marine surveying competence. In Norway, insurance companies certify the standards of marine cages and moorings, providing both professional advice and appropriate insurance cover. The industry would consider adopting a similar scheme and would amend the Code of Good Practice chapter to include such an amendment, allowing a 12 month transition period due to the cost burden.

We would still recommend that the Bill adopts the Code of Good Practice chapter on containment as best advice and that it be given the opportunity to prove itself before expensive and inflexible regulation is imposed.

Therefore, the exercise of any such power should be restricted to farms that are not CoGP compliant."

Question 12: Do you agree that the Regulator should have a role in improving containment to prevent escapes?

Table 2.12 shows the breakdown of responses to Question 12 for each of the main stakeholder groups.

Table 2.12 Views on the role of the Regulator in improving containment

Note: The overall response rate for this question was 73%.

A significant majority of respondents agreed with the question. Many respondents welcomed the prospect of an advisory role for the regulator in this area. The feelings of many respondents were be summed up by a consultant who noted:

"The Regulator must have powers to help improve the containment and to prevent fish escapes. The current Code of Good Practice and the Containment Code provide baseline information for the industry to work to however these are voluntary and there is no requirement to comply with them."

However, a number of respondents, whilst welcoming the "input" of the regulator, noted that there might be little for any Regulator to advise on, as the aquaculture industry was already only too aware of the need to prevent escapes and "striving towards perfect containment". A number of fish farms suggested that advice on improving containment was already available from the insurance industry. One fish farm stated that:

"All fish farm sites are already inspected and audited by the insurer of the fish (the fish farmer needing to demonstrate that his site has adequate containment in order to get insurance)."

Other fish farms and aquaculture bodies suggested that it might be best if the Code of Good Practice be given an opportunity to "prove itself", with any such role for the regulator restricted to "farms that are not Code of Good Practice Compliant". This view was echoed by other respondents. One voluntary organisation noted:

"Regulator must have powers to help improve the containment of farmed fish and prevent escapes. The current industry Code of Practice and the Containment Code provide baseline information for the industry to work to. However, these are voluntary in nature and there is no mandatory requirement to comply with such codes. Therefore it is important that the codes are backed up by a regulatory process that should only need to be triggered where there is a failure of compliance with the current accepted industry standards."

2.43 Strict Liability Offence

The Executive proposes the creation of a strict liability offence in respect of escapes of finfish from fish farms. In the event of an escape from a fish farm the operator (who would be one or more of the following: the farm owner, the company directors, the farm occupier (the lessee), the farm operator or the farm manager) would be guilty of an offence, unless they could prove to the court that the operator had taken all reasonable steps to prevent an escape from occurring.

Question 13: Should the Executive introduce a strict liability offence for escapes from fish farms?

Table 2.13 shows the breakdown of responses to Question 13 for each of the main stakeholder groups.

Table 2.13 Views on the introduction of a strict liability offence for escapes

Note: The overall response rate for this question was 75%.

A significant majority of respondents agreed that the Executive should introduce a strict liability offence for escapes from fish farms. However there was some debate as to how this might work in practice. Some respondents wondered how the authorities would prove that there had been an escape from a fish farm. This led to many calling for a requirement to tag or mark farmed fish. One angling association summed up the feeling of many, noting:

"Verifying that any fish came from a particular farm would be extremely difficult. Without the ability to do this strict liability is effectively meaningless. As a priority there is a need to seriously investigate [the use] of tagging (dye tagging) or other means of identifying the origin of escaped fish."

Other respondents, whilst also welcoming the proposal, suggested that the introduction of a strict liability offence would deter fish farm operators from reporting escapes. One fisheries trust noted:

"If a fish farm has to report it and then be prosecuted, won't this discourage reporting?"

Some respondents from the freshwater community indicated that the polluter pays principle be applied where there is an escape. It was suggested that where third parties are involved in the recovery of escaped fish from a fish farm then the operator of that fish farm should be obliged to contribute to the costs incurred by those third parties.

Many fish farmers suggested that there may be considerable expense associated with the proposals in proving "due diligence expenses". A number from the aquaculture sector objected to proposals, as they amounted to a presumption of guilt. One fish farm noted:

"As proposed, the provision reverses the tenets of natural justice. It is for the prosecution to demonstrate, beyond reasonable doubt, that the farm failed to take all reasonable precautions (or wilfully ignored the industry Code of Good Practice advice) to prevent an escape, rather than trying to reverse the burden of proof."

One aquaculture body, many fish farms and a number of individuals suggested that any proposals be set aside until 2007 after which:

"Any consideration of the introduction of strict liability should only apply to farms that are not Code of Good Practice compliant. Any such strict liability offence if subsequently introduced should be punishable only on summary conviction, not solemn conviction, which latter procedure carries with it higher penalties."

A small number of respondents asked if the proposed offence was applied in the land based sector. One university stating:

"Yes, although how does this fit with other agricultural legislation regarding escapes of farmed deer, cattle etc."

One fish farm considered an alternative to the strict liability offence. It suggested that it would be more appropriate for the Regulator to inspect a site and if need be serve an enforcement notice to secure improvement to containment measures already in place, with failure to comply with the notice an offence. The fish farm stated that "this system is currently employed by SEPA and is effective when applied proportionally".

A number of respondents suggested that escapes from hatcheries be considered an offence. One public body noted:

"In the interests of conserving wild fish stocks, we would expect that escapes from a restocking hatchery would also constitute an offence since the stock escaping may be wholly unsuited for release to the watershed. Such an event could not be confused with a deliberate 'restocking' release."

2.44 Containment Plans

Fish farm operators must have in place suitable containment plans with the aim of preventing escapes.

Question 14: What elements should be addressed in containment plans?

Table 2.14 overleaf, shows the breakdown of responses to Question 14 for each of the main stakeholder groups.

There was a broad spectrum of opinion and this is highlighted by the responses categorised as 'other responses', 30%. The most dominant segment of respondents (32%) supporting the outlined containment plans in the consultation document. A further 6% agreed with almost all the outline plans.

A lot of respondents agreeing with the outline plans did not offer any additional comment. A few respondents made additional comments including the suggestion that double netting is required to help prevent escapes. It was pointed out across the board that the plans only considered sea cages and that land based farming was overlooked. A public body said:

"Figure 1 accords, more or less, with previous guidance, including the new CoP, as a list of what might be included within a containment plan. It is almost entirely cage-focused, and needs specific provisions for pond and tank farms, for example risk assessments and contingency plans in the event of severe flooding."

A fisheries trust gave a more specific suggestion on this issue: "It is very important that plans mention grids/screening both within and covering the outflows of land based farms."

The design, robustness, maintenance and care of cages draw widespread comment. Some respondents (5%) suggested that a minimum standard should be set for equipment and that there should be regular inspections and certification to support. This local authority tied these points in with concerns about working practices:

"The issues set out in Figure 1 of the consultation document appear appropriate as a minimum but it all relates to escapes through poor equipment design. The Council feels that the containment plan should also detail site specific working practices and a minimum level of training/qualification/experience that site staff will have prior to being involved in activities such as cage stocking, net changes, boat movements, swim-throughs and harvesting, all of which may result in net damage or fish escapes."

Fish escapes and recapture combined represented 18% of responses. A number of these respondents raised concern that escapes have increased in recent years and that financial liability for the effects of escaped fish needs to be addressed.

The responses classed as 'other responses' covered a large number of suggestions. This response from a fish farm summarised many of them:

"Oceanic currents; AMG/ AMA membership; location to rivers and estuaries; sea lice data; local relationships/community links with GOs and NGOs; benthic surveys; location; farm infrastructure in moorings, cages, nets, surveyor involvement; predators; code of practice for checking and replace infrastructure; infrastructure challenges not just from weather but from boats which moor up to cages especially the new generation of wellboats."

The financial implications of the containment plans were also discussed by a group of fish farms. The main concerns highlighted the expense of qualified professionals that would be required to assess fish farm structures. It was highlighted that the role of insurers may already go some way in ensuring that containment plans are robust enough:

" Furthermore these inspections are already carried out by the insurers of the fish and are a requirement of the new industry Code of Good Practice."

Table 2.14 Views on the elements of containment plans

A Agree to all of Figure 1 in the consultation document
B Agree to most of Figure 1 in the consultation document
C Containment plans should include specifications for containment equipment
D Containment plans should meet what is set out in the industry Code of Good Practice
E Details for escape recovery and financial costs/liability
F Details of escape traceability and fish movements
G Other responses

Note: The overall response rate for this question was 61%. 268 respondents answered this question. Some respondents supported more than one option in the table. The 'Share of Total Responses' column therefore totals 313.

The current regulatory regime for fish escapes is provided by the Registration of Fish Farming and Shellfish Farming Business Order 1985 as amended. Experience over the past three years suggests that a minority of operators are not specific enough about the circumstances of an escape (suspected or otherwise) and very often fail to report 'forthwith' as required by current legislation. There has also been criticism from some quarters about the time taken to determine whether or not an escape has actually occurred. What is now proposed is a wider regulatory regime covering the inspection and regulating of containment measures on farms as well as notification procedures.

Question 15: Do you have any views on the above proposals?

Table 2.15 shows the breakdown of responses to Question 15 for each of the main stakeholder groups.

Table 2.15 Views on powers of investigation for escapes

Note: The overall response rate for this question was 56%.

Almost a quarter of the stakeholders (23%) who responded to this question were entirely happy with the proposed notification procedures for fish escapes. There were no respondents who were entirely unhappy with the proposed procedures. 77% of respondents expressed mixed views on the proposals, these are summarised below.

It was thought by many that proposal 36.2 (where an operator must immediately inform Scottish Ministers in writing of the discovery of escape or suspected escape) would mean the length of time before a reaction to the escape could commence, would be dependant on the length of time the letter took to be delivered to Scottish Ministers. A public body said:

"Letters (even those sent with proof of postage) get lost, and a letter may take days to reach Scottish Ministers - days which may be crucial to the recovery of escapes."

There were also a number of respondents who thought that a timescale for notification was required. "A timetable should be included to avoid slow responses and reporting" stated a Fisheries Trust. The timescales suggested varied between immediate reporting and up to 24 hours after the event.

Further to this some respondents believed that it should be mandatory for operators to notify the relevant body(ies) of escapes or suspected escapes. A research trust expressed the view that "Yes the proposals are reasonable but [we] would prefer escapes to be notified to SEERAD as a statutory obligation". It was suggested that failure to notify the relevant body(ies) should be an offence and carry some form of penalty, for example in the form of a fine.

Another popular view given in this response was that other interested parties should also be included in the immediate notification of escapes. The most common suggestion was that the local Fisheries Boards and Trusts should be informed. Other suggestions included local authorities, neighbouring farms and neighbouring riparian owners. One consultant commented that:

"Local stakeholders who have an interest and may find there is an adverse impact on their activities must be notified at the same time. These stakeholders may well be able to help with containment plans with which they can help the industry."

However there was also concern that in certain circumstances immediate action to curtail escapes may not be possible. A number of fish farms, members of the aquaculture industry bodies and private individuals stated that:

"Of the small number of escapes that occur, a large proportion are the result of storm damage. Due to Health and Safety rules it can often be unsafe for operators to direct staff onto cages. This cannot be the liability of the fish farmer."

In addition they went on to say that operators should not be held accountable for actions of a third party:

"While every fish farmer should have reasonable security in place at farms, it is unreasonable to expect them to prevent other people breaking the law and committing acts of vandalism or theft."

There was comment by many stakeholders that proposal 36.3.8 (requiring a record of each drug administered) was not relevant for the reporting of escapes and that the issue should be covered by food standards legislation.

It was often mentioned that it is better to prevent escapes in the first place rather than deal with the aftermath of an escape. It was noted that the regulator could assess a fish farm's ability to prevent escapes through a programme of site containment inspections and be empowered to act in the conclusions of the inspection.

2.45 Powers to investigate incidents

Under existing notification procedures the Scottish Executive has no power to investigate a suspected escape where it has been informed by a third party. Up to now the Executive has contacted the operator of the fish farm in question and requested that they establish whether or not there has been an escape. The Executive proposes that the Regulator should have powers to investigate escapes and suspected escapes of fish from fish farms however the intelligence of an escape is received.

Question 16: Do you agree that the Regulator should have powers to investigate escapes and suspected escapes from fish farms whatever the source of the information?

Table 2.16 shows the breakdown of responses to Question 16 for each of the main stakeholder groups.

Table 2.16 Views on the Regulator's power to investigate escapes

Note: The overall response rate for this question was 71%.

An overwhelming majority of respondents were in favour of the Regulator having the power to investigate escapes and suspected escapes from fish farms whatever the source of information. 9% thought that the Regulator should not have such powers.

Many respondents who agreed with this proposal felt that the Regulator should have discretionary powers to ignore any information regarding escapes where there was insufficient proof. Several private individuals and one fish farm stated:

"We are concerned about the potential waste of money and management time in dealing with nuisance calls and believe that the Regulator should have the discretion to act only when there is justifiable evidence."

There was some feeling that where it was proven that misinformation has been given maliciously then action should be taken against that source. One aquaculture industry body suggested:

"There should be provision for discouraging individuals or organisations from making repeated vexatious, vindictive or mischievous reports, against a site or company. There should be the potential for recharging investigation costs for the complainant in such cases."

There was a common theme from a range of stakeholders that thought further to the powers of investigation, the Regulator should also have powers to act on the outcomes of an investigation. A research centre said:

"Yes and the Scottish Ministers should have the power to instruct/require the fish farm operator concerned to improve existing procedures."

Of those who were against the measure a common response was that if the Regulator was to investigate all reports of suspected escapes it would prove too costly in terms of time and money to both the Regulator and Industry. A research unit echoed the views of many when it stated:

"No - this would mean that the Regulator felt duty bound to investigate every report, no matter how received. This would provide significant cost to the Regulator and to industry. Lack of investigation would result in criticism in the media."

2.5 Data Collection

The Executive proposes that the Scottish Ministers have the powers to oblige the aquaculture industry to submit data that they deem necessary. The data will inform how the Scottish Ministers develop future policies, future decisions and ensure that the industry continues to move towards achieving the SFSA vision of a sustainable, diverse, competitive and economically viable industry.

The data submitted will include all data currently obtained through the annual production survey as well as additional economic data from producers and trade bodies. For example, the Scottish Ministers may require farm gate price information and breakdown of cost data and production value and volume. This would give information on company financial performance or cost structures.

Question 17: What data, in addition to the production survey data, do you believe are appropriate to submit?

Table 2.17 overleaf, shows the breakdown of responses to Question 17 for each of the main stakeholder groups.

The range of responses was very broad but there are four clear themes:

1) Agreement that all data deemed necessary by Ministers should be available (17%)

2) That data on sea lice levels should be available (14%)

3) That information on disease and treatments should be published (13%)

4) Respondents who supported collection of economic data, including employment figures, local/national economic impact, production value and volume data etc. (10%)

Throughout most responses, across the stakeholder groups, it was repeatedly stressed that some of the data requested would be commercially sensitive. Many felt that while the onus of the data collection was to improve the environmental sustainability of the aquaculture industry, companies should not have their commercial competitiveness unduly impacted. Some respondents suggested that data should be collected, for example, on a monthly basis but should only be published annually as aggregate figures for the industry. Opinion varied over who should collate any data, the industry or the Regulator/ FRS/ SEERAD. One aquaculture industry body said:

"Provision of economic data by individual businesses is commercially sensitive … this information is supplied by member companies but consolidated: no individual company's data are revealed. Consolidated information is made available to public sector bodies and other agencies which enables strategies and policies to be developed to support and assist the industry. The Seafood industry in general is heavily burdened by a morass of legislation and bureaucracy. Should the requirement for additional information arise, forms must be very concise and easy to complete. Obtaining information from the processing sector will place an additional administrative burden on this sector. This will be particularly onerous for small firms and those processing both farmed and capture species, many of whom do not isolate these operations."

Whilst there were concerns over the confidentiality of any data collected, there was also a clear feeling, particularly among those outside the aquaculture industry, that it is important to collect a broad range of data in order to help assess the environmental impacts of the industry. This is highlighted by the 17% of respondents agreeing that all data that Scottish Ministers deem appropriate, should be made available. One local authority sad:

"Sustainability requires measurements of environmental impacts as well as the economic indicators. There should be data submitted which permits such an assessment alongside the economics."

Figures related to sea lice levels, other parasites, disease levels and treatments administered, together total a 27% share of the responses. Many of those who listed these issues did not express in length their reasons for doing so. One individual made this comment:

"Sea lice data should be reported and published. Obviously such data is sensitive but in Ireland sea lice counts are published and even distributed to angling associations. The data is required to monitor trends and to establish emerging resistance to medicines such as 'slice'."

In terms of 'general economic' data it was recognised that some of this data is already collected and published by aquaculture industry bodies and that combined with the environmental data collected by SEPA and FRS, an important combined resource already exists. However the list of specific suggestions included statements like this one from a conservation body:

"I agree that the Scottish Ministers should have the power to oblige the aquaculture industry to submit appropriate data. This should include, as well as the annual production information, the cost (and source) of stock, farm gate price information and cost data and production value and volume. Such information would have to be treated in strict confidence as far as individual farms are concerned."

Another significant theme was information relating to introductions, including the origins of fish, and any subsequent movements. This combined with figures on the number of fish escapes and recaptures totals 17%.

There was some comment that no extra data collection was required. One local authority pointed out that:

"There is potential for collecting data purely for the sake of it. Some of the highlighted data listed in the consultation paper is not available from site operators but would come from trade associations, sales companies or processors. There would appear to be little benefit in collecting more data that that already submitted through the Registration of Fish Farming and Shellfish Farming Businesses Order 1985."

Table 2.17 Views on appropriate data to be submitted

A All data deemed necessary by Ministers 17%
B Sea lice data 14%
C Disease and treatment data 13%
D Introductions/fish origins/fish movements 8%
E Escapes and recapture 9%
F Economic data 10%
G Stock and harvest data 5%
H Needs more discussion 8%
I No extra data is required 6%
J Other responses 8%

Note: The overall response rate for this question was 50%. 219 respondents answered this question. Some respondents supported more than one option in the table. The 'Share of Total Responses' column therefore totals 232.

2.6 Fish Farm Relocation

The Executive proposes that the Scottish Ministers be given powers enabling them to offer financial assistance to fish farm operators who wish to relocate any or all parts of their operations where they are able to demonstrate that there is an environmental benefit from doing so. The enabling provisions should apply to all types of fish farm, in all parts of Scotland in both the freshwater and marine environment.

2.61 Voluntary Relocation

Question 18: Do you agree that financial assistance be given to fish farm operators to relocate where there is a clear environmental benefit in doing so?

Table 2.18 shows the breakdown of responses to Question 18 for each of the main stakeholder groups.

Table 2.18 Views on financial assistance for fish farm relocation

Note: The overall response rate for this question was 73%.

Many of the 86% of respondents who were in favour of this proposal, suggested it would have to be proven that the reasons for relocation were environmental rather than economic. Some respondents indicated that the operator of the fish farm should give up any rights to the original site.

Some respondents commented that compensation should only be paid to those operators who adhered to good practice in the running of their fish farms. A non-governmental organisation stated:

"Yes, subject to compliance with the polluter pays principle. Funds should only be available where the need for relocation is not the fault of the operator's negligence or poor practice."

A number of stakeholders expressed the view that there should be guidance governing this issue. One District Salmon Fishery Board said:

" … clear guidance as to what is considered environmental benefits should be given, and should be built upon sound scientific judgment."

Many fish farms mirrored this view by stating: " action should be taken in conjunction with SEPA."

For those who disagreed with this proposal, many qualified their responses by stating that if the reasons for relocating were environmental, then the owner should not receive compensation and should relocate at their own cost. A freshwater fisheries related business answered:

"Most certainly not. Why on earth would financial assistance be offered to fish farmers when not offered to agricultural farmers or forestry operations?"2.62 Compulsory closure of fish farms

As a last resort, the Scottish Ministers should have the power to close a fish farm where they believe there is a clear public interest for them to do so, but only where an operator is not prepared or unable to relocate their operations.

Question 19: Do you agree that the Scottish Ministers should have powers to close fish farms where there is a clear public interest to do so and where owners are not in a position to relocate?

Table 2.19 shows the breakdown of responses to Question 19 for each of the main stakeholder groups.

Table 2.19 Views on powers to close fish farms

Note: The overall response rate for this question was 72%.

80% of all respondents agreed that Scottish Ministers should have powers to close fish farms where there is a clear public interest to do so and where owners are not in a position to relocate. 12% did not think that Scottish Ministers should have these powers.

Of those who were in favour of the proposal a number of supplementary suggestions were given. A common qualification was that the powers should only be invoked as a last resort. In addition many stakeholders also added that compensation should be paid in such situations. These two quotes sum up a number of views, the first taken from an angling association and the second from a private individual:

"Yes, this is essential. However, these powers should only be used as a matter of last resort once all other options have been exhausted."

"Fish farms should be closed when there is a negative effect upon the ability of the local environment to sustain a wild healthy population of viable species."

Disagreement with this proposal focused on the loss of financial assets for the fish farms concerned and the fact that historically these sites had been deemed suitable. A view made by fish farms and some private individuals alike said:

"No - if the sites (which are the primary asset upon which a fish farm company relies to generate finances) could be closed down under such terms fish farming would suffer a major problem with investor confidence."

Other stakeholders rejected this proposal on the grounds that appropriate legislation already exists and could be used to close fish farms.

2.7 Discretionary Power to Pay Compensation for Compulsory Slaughter

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.

Any compensation scheme for any given outbreak of disease would be detailed in a Statutory Instrument ( SI) that would be consulted on at the time. Any scheme would be funded only on the basis of shared risk. 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.

Question 20: Under what circumstances might it be useful for the Scottish Ministers to have discretionary powers to pay compensation to fish farm operators?

Table 2.20 overleaf, shows the breakdown of responses to Question 20 for each of the main stakeholder groups.

The three most common suggestions as to when compensation should be paid were as follows:

1. when a loss of stock and/or production has been incurred due to a disease or parasite outbreak (26%)

2. when the operator has strictly adhered to the Code of Good Practice (25%)

3. the same rules as those in agriculture should be applied (16%)

One fish farm said: " We agree that in order to be considered for compensation the farmer should demonstrate compliance with the Code of Good Practice."

Of the respondents who answered this question, 4% did not agree with giving compensation to fish farm operators. A high number of respondents qualified their response by stating that either the individual operator or the industry as a whole should take out insurance to cover losses incurred as a result of disease. A non-governmental organisation said:

"Producers should be required to have insurance cover to meet the cost of any losses incurred due to disease or compulsory slaughter ordered as a disease control method. The public purse should not be used to compensate farmers."

Table 2.20 Views on discretionary powers to pay compensation

A When disease & parasite controls have been administered (26%)
B Compensation but not discretionary (7%)
C Where operators have fully complied with Code of Practice (25%)
D When relocation of cages is required (1%)
E Where there are clear environmental benefits (1%)
F As a result of government action(s) (5%)
G Circumstances outwith operators' control (6%)
H On the same basis as payment to agriculture (16%)
I Other mixed responses (4%)

Note: The overall response rate for this question was 58%. 251 respondents answered this question. Some respondents answers fell into more than one category. The 'Share of Total Responses' column therefore totals 322.

2.8 Fish Movements - Fish Farms

2.81 Marine farm management areas

The Executive proposes therefore that the consent of the Regulator will be required for movements of live fish out of management areas to be defined in secondary legislation. To move fish without such a consent would be an offence. This would also regulate movements ashore for stripping of broodstock and for processing. The Regulator outlined in paragraph 9 of this document would be responsible for authorising such movements.

Question 21: Do you agree with the need to regulate live fish movements out of, and between, marine farm management areas?

Table 2.21 shows the breakdown of responses to Question 21 for each of the main stakeholder groups.

Table 2.21 Views on live fish movements between marine farm areas

Note: The overall response rate for this question was 71%.

85% of respondents agreed that there was a need to regulate live fish movements out of, and between, marine farm management areas, while 12% disagreed. 100% of the freshwater fishery stakeholders who responded were in favour of regulating live fish movements. The most commonly stated reason for their support was to control the spread of disease.

There was some confusion over the use of the term 'marine farm management area' in the question. This gave rise to concern as to what constitutes 'management areas'. Respondents unclear about the question wording referred to the aquaculture Code of Good Practice. One individual said:

"Please note there are not marine farm management areas, but Management areas (see CoGP). Also note that the ISA management areas are different."

A local authority and a District Salmon Fishery Board expressed the view that the proposal:

" Should also include freshwater farms and land transportation."

There were a number of respondents who did not agree with such a measure. According to many private individuals, fish farms and aquaculture industry bodies:

"The restriction on the movement of fish would greatly encumber the industry to operate efficiently and cost-effectively."

Many respondents within the aquaculture industry said that the current state of affairs regarding live fish movements was sufficient. This view echoed the views of many private individuals, fish farms operators/industry and a community council:

"This should only be regulated in accordance with the current legislation to control the movement of live fish where a notifiable disease may exist. There is no need for further legislation on this subject."

2.82 Freshwater Fish Farms

In general, there should be no need to restrict fish movements between freshwater fish farms because the Diseases of Fish Act 1937 as amended, gives sufficient powers to be able to deal with an outbreak of a notifiable disease. That said, it would be helpful to include a power in the Bill for 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 above Diseases of Fish Act.

Question 22: Do you agree there is no general need to restrict live fish movements between freshwater fish farms?

Table 2.22 shows the breakdown of responses to Question 22 for each of the main stakeholder groups.

Table 2.22 Views on the need to restrict movements between freshwater fish farms

Note: The overall response rate for this question was 64%.

A majority of respondents (52%) disagreed with this proposal. 45% of respondents thought that there was a need for such measure.

Of the respondents who did not agree, a high proportion qualified their response by saying that it was sensible to restrict live fish movements on bio-security grounds. Many felt that restricting fish movements would help prevent the spread of disease, parasites and alien species. A fisheries trust stated:

"No, although the Disease of Fish Act 1937 exists, there is still concern relating to the possible movement of disease and other organisms. There may be a need to possibly control fish movements to and from key areas. The movement of fish (from farms containing American Signal crayfish) has the potential to facilitate the introduction of crayfish to new waters."

A number of private individuals who thought that movements should be restricted voiced their concern that although they are "happy to provide notification of fish movements including broodstock, in line with recommendations in the CoGP including risk assessment, but are not happy to allow SEERAD to micro manage farms".

The majority of respondents who did agree with the question specified that unrestricted movement of live fish should only occur 'providing they are clear of disease.' A private individual took this further by stating "Subject to health worries there should be no restrictions - providing new species are not introduced without research and approval".

Another common qualification for allowing unrestricted live movement was that there should still be some form of paper keeping and notification of live fish movements. One angling club noted:

"Yes, but there must always be a paper trail…in the event of an emergency or outbreak of infection any suspect contaminated or infected stock can be traced."

Those in favour of this proposal also stated that movement should be allowed in line with the industry Code of Good Practice. However if a disease outbreak occurred then quick action should be taken to prevent this from spreading. This private individual's response was supported by a range of stakeholders:

"So long as there are measures in place to prevent the movement of disease - remember the way foot and mouth spread because of animal movements between farms."

It was also noted that these types of movements should only be allowed within the same catchment areas.

Question 23: Is the proposed power to bring in a national standstill provision in case of a novel disease appropriate?

Table 2.23 shows the breakdown of responses to Question 23 for each of the main stakeholder groups.

Table 2.23 Views on standstill notices

Note: The overall response rate for this question was 68%.

Of the 78% of respondents in favour of such a provision many suggested that there must be flexibility to lift such a standstill. One private individual said:

"The clarity and simplicity of a national standstill makes it a desirable provision, although there should be a scheme for approving exemptions in individual cases that have been carefully assessed and found to create no risk."

A fisheries trust added:

"Yes, although commercially it would be useful for farmers to know the possible length of any proposed standstill for economic reasons".

A number of respondents also stated that this measure would only be desirable if compensation is given in the event of a standstill order being issued.

Of those who disagreed with this measure a large number qualified their response by stating that such a provision would have detrimental effects on the industry. A number of fish farms agreed that:

"Any such action may well result in the following:

• Smolts ready for transfer reverting to parr (this would make them worthless)
• Loss of income to the smolt producer
• Disruption to stocking plans that form an integral part of area management agreements
• Loss of production to the sea site farmer with an associated drop in income
• Loss of continuity of supply to the customer who would in turn look to other markets."

There was some feeling amongst private individuals that instead of the standstill order, "fish movements should be minimised and regulated especially where they are linked to importation from out with the UK". Comment that standstill orders should be introduced regionally also appeared repeatedly.

2.83 Wellboat Disinfection

A wellboat is a vessel for transporting live fish in tanks. Many of the wellboats operating in Scottish waters subcontract from other countries, notably Norway. The Epizootic Report into Scotland's ISA outbreak suggested the possibility that the virus was accidentally introduced as a result of inadequate disinfection of a wellboat before departure from Norway where ISA has not been eradicated. The Executive proposes to enable the Regulator to be able to inspect any wellboats before they begin 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.

Question 24: Should the Regulator be empowered to licence the transfer of fish by wellboats in Scotland?

Table 2.24 shows the breakdown of responses to Question 24 for each of the main stakeholder groups.

Table 2.24 Views on the licensing of fish transfer by wellboats

Note: The overall response rate for this question was 69%.

There is a high degree of unanimity amongst most stakeholders in favour of this proposal with 91% of all respondents agreeing that wellboats in Scotland should be licensed by the regulator. 8% of respondents disagreed.

Of those who were in favour of licensing proposal many validated their response by stating that wellboats can carry disease, parasites and alien species into an area previously free from said organisms. An angling association stated:

"Again this would significantly help control the spread of disease or parasites especially given the involvement of wellboats in the transfer of ISA during the last outbreak."

A common view was that licensing should only occur when wellboats are entering from outside the UK. Many stakeholders from fish farms and the aquaculture industry, as well as private individuals suggested:

"Wellboats which move fish into the UK from a state with lower status should be subject to compulsory disinfection and then a licence to operate. See CoGP."

Further to this, there were suggestions that once a wellboat from outside the UK gets a licence then it should be allowed to operate freely within UK waters. In addition the regulator should be empowered to inspect wellboats to monitor standards and movements. The following view was presented by a number of fish farms:

"The regulator should be empowered to licence a wellboat upon arrival in the UK with appropriate disinfection being carried out on arrival but the wellboat should then be allowed to operate freely under licence within the UK."

Of the stakeholders who disagreed with this some stated that there was no need for this measure as the Code of Practice was sufficient. One fish farm stated:

"The Regulator should be empowered to ensure adequate disinfection and nothing more. The suggestion that the Regulator would be able to micro-manage wellboat movements is unnecessary and inappropriate."

A common view among aquaculture stakeholders said:

"No - however the regulator should have the power to inspect any wellboat arriving from outside Scottish waters before they commence operating within Scottish waters to ensure that they have thoroughly cleaned and disinfected the vessel. Inspection of wellboats in transit within Scotland would be further duplication of the Code of Good Practice."

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